What Is the Difference Between Durable and Springing Power of Attorney?

93 Comments

A power of attorney (POA) document legally enables a person (called the “principal”) to appoint a trusted relative or friend (called the “agent”), to handle specific health or legal and financial responsibilities on their behalf.

There are two types of power of attorney that afford different legal abilities. POA for healthcare gives an agent the authority to make medical decisions on behalf of the principal. POA for finances gives an agent the authority to make legal and financial decisions on behalf of the principal.

These documents are crucial for enabling trustworthy family members to help manage an aging loved one’s medical care, bills and legal affairs. This assistance is invaluable for a senior who is incapable of making informed decisions for themselves. However, POA is also useful for seniors who are still competent but simply need an extra set of hands and eyes to help manage social security benefits, bills, long-term care decisions, etc.

Families should prepare these legal documents long before incapacitation is a factor. A simple accident or illness could cause a loved one to suddenly become incapacitated, but POA documents allow agents to immediately step in and help manage the situation. Without medical and financial POA, family members must go through a great deal of red tape and expense in order to obtain guardianship so they can make decisions on a loved one’s behalf. This includes healthcare decisions, especially regarding end-of-life care, long-term care decisions, Medicaid planning and much more.

Read: How to Get Guardianship of a Senior

Drafting POA documents well in advance is also an important part of preparing for the possibility of dementia. Most seniors do not receive a diagnosis of dementia until their condition has progressed significantly and they have suffered serious cognitive impairment. Being proactive is crucial because a principal must be competent in order to establish a POA. Many families wait until it is too late to draft these documents, and those in the later stages of Alzheimer’s disease and other types of dementia typically are not mentally capable of legally appointing agents to act on their behalf.

Because timing and a principal’s ability to make informed decisions are such important factors, there are two ways to write POA documents that can affect when they become “active” or “inactive.” With a durable POA, the document becomes effective immediately upon signing. The agent obtains legal authority to make decisions about matters detailed in the document and maintains it whether or not the principal ever becomes incapacitated.

On the other hand, a springing POA names an agent in advance but does not grant them legal authority for decision making until the principal becomes incapacitated. The difficulty with springing POA is that the principal must be incredibly careful when specifying what type of event will activate the agent’s powers. If it isn’t crystal clear what kind of incapacitation triggers the POA, then the family may have to waste precious time going to court to determine if the principal meets the POA document’s conditions for incompetency and whether the agents are able to assume their duties. In most cases, some sort of certification from a doctor regarding competency is required to activate a springing POA.

Less common in elder care legal planning is the non-durable POA. This type of POA takes effect immediately upon signing but does not remain effective once the principal is deemed incompetent. This type of POA is usually used in business transactions and is meant to grant an agent temporary authority to sign financial or legal documents when the principal is unavailable.

People often balk at the thought of preparing and signing a power of attorney document. Some may feel frightened at the prospect of losing their independence, and some are afraid that the agent they appoint may go against their wishes. It’s essential, of course, to choose an agent wisely and to discuss the scope of their ability to act on your behalf. Keep in mind that these documents can be revised or revoked at any time, as long as the principal is still competent. Otherwise, it stays in force until the principal dies. To learn more about power of attorney documents and other estate planning and legal matters, find a reputable elder law attorney in your area and make an appointment for a consultation.

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93 Comments

Thanks for your comments. If this was 2 men it would be callled a pissing contest. She is out to prove she is smarter than I am and with no love for her wants her Mom away so she will not be bothered and will not have to answer her phone calls. She won't answer them now and I have called her on it a couple of times and it has gotten nasty.
derlan,
Is your father competent to revoke the previous POA which sounds like it is a Durable POA? If he is competent, then he can revoke it and sign one written up for you and have a certified letter sent to your sister that she is no longer the POA. At the same time, I'd also have him sign a medical POA. Otherwise if his dementia is too far advanced for him to sign anything, then you will need to go for guardianship.
Both my mother and my husband had durable power of attorney over my father who has been alcholic all his life. Parents legally separatd in NH - about 20 yrs down the road, they start living together again - moved to Florida - she owns the property but they are both on the house mortgage. Dad had brain surgery at age 84 - my mother could not get to him in case of emergency and handed over the original signed dpoa to my husband in 2010 - 77 days in hospital -77 nites my husband was there. -- After brain surgery, Dad started drinking daily and mom's response to this (they also have a marital agreement) was to kick him out - let him drive drunk to motel and then when he got sober he could go home for two days - he had no key to the house - from Jan 2011 - July 2011, Dad spent almost 15,000 on bars, motels and a Lincoln that he bought from a barmaid. He got a dui at age 85. Mom lived 20 min from jail - we live 2 hrs away - my husband drove down at 3am to post 1000 cash bond. It got worse and I found Dad a mobile home near us - address was changed - but right before, mom had kicked him out again and we found him at a microtel motel covered in urine and bleeding..........we took him to hospital where his hr was 32 - emergency pacemaker. July 18, I drove down and removed him from Hernando county to Pinellas - he slept on couch one night - next day (still in withdrawal) he kept leaving my house and I kept calling police - they finally gave him a choice to go to the va with me or they were going to put him in asst living - ended up Baker acted in Va, then went to nursing home - Mom was kept infomred of what was going on but not until he left the VA with a diagnosis of senile dementia did she decide to get back in the picture - Dad was deemed incompetant on his dui charge and state dropped charges - all this time, we had gotten attny to apply for va benefits, etc - Mom called constantly angry about her taxes - Dad by now in asst living - my husband made the mistake of telling mom the truth - that Dad was only her husband at her convenience - she pulled him out of asst living (5 star) took him to attorney to sign a poa revocation, then took him out of asst living and back up north where she placed him in a dump of an assisted living tht filed bankruptcy 11 in 2004 and has been cited for not having patients current med list and not administering meds properly. Within 3 wks Dad had major stroke and is now almost catatonic. My husband has filed for guardianship and we do have letter from Mom stating that he wanted my husband to care for him dated in Jan 2012 - the revocation was done Feb 15 - I know this is going to be a mess in court - we have an Elder Affairs attny but Mom retained the criminal defense attny (who took care of my sisters dui and the revocation) -- moms attny specializes in duis but said he would represent her. Our attny has practiced 100 percent elder law since 1972 - moms has been in practice since 2000 - Mom does not have Dad's best interests at heart but wants to retain control..........with her being DPOA, do we stand a chance?