The question of whether to create a springing or non-springing POA (power of attorney) is a common one among people creating an estate plan in Florida. Though it is important to understand that no two estate planning situations are ever identical, and that you need to talk to your attorney about crafting powers of attorney that meet your individual needs, there are some general issues you can familiarize yourself with when it comes to springing or non-springing POA. Today, we’re going to take a look at several of these issues, and how your plan might incorporate one or both of these kinds of documents.
A springing power of attorney doesn’t take effect until triggering actions have occurred. These triggering actions, known as conditions precedent, are stated explicitly in the power of attorney document. Once they take place, only then does the agent receive authority to begin making decisions on behalf of the principal. Most people who use springing powers of attorney do so in light of possible incapacitation. In other words, they create powers of attorney that don’t take effect until they have become incapacitated and unable to take care of their own affairs.
A non-springing POA takes effect immediately upon the principal signing the document. Once signed, the agent under the power of attorney receives the authority to begin making decisions on behalf of the principal. The types of decisions the agent can make will differ depending on the kind of power created. Most people who create a non-springing POA do so in order to delegate decision-making responsibility to someone else immediately.
Springing or Non-Springing POA
When people learn about powers of attorney, they are often concerned about handing over their decision-making authority to someone else. This is why a springing power often seems so appealing. But, reluctance to create a power of attorney out of fear that your agent might misuse the powers granted is quite often the root cause of this concern. If this is your main reason for why you want to create a springing versus a non-springing power of attorney, there are a couple of issues you need to consider.
First, you need to realize that an agent cannot simply do whatever he or she likes once given decision-making authority under a POA. There are laws that punish agents who misuse decision-making authority, and which protect principals who might be subject to such abuse.
Second, if you are already concerned that you cannot trust your agent, you probably need to look elsewhere. Selecting a reliable, responsible, and trustworthy agent is one of the most important steps in creating a power of attorney, regardless of the type of power you choose to create. Always talk to your lawyer for advice about choosing the right agent for your POA.