A lot of people who talk to us about creating estate plans have questions about springing or non-springing powers of attorney. Almost every estate plan that people create in Kansas and Oklahoma will include one or more powers of attorney, but the type of power of attorney you include is entirely up to you. When it comes time to create these documents, do you need a springing or non-springing power? What’s the difference? What does one provide that the other does not?
To clarify some of these important questions, let’s take a look at some important issues surrounding springing for non-springing powers of attorney, and why they matter to you and your estate plan.
Springing Powers of Attorney
All powers of attorney allow capable adults to delegate their legal decision-making responsibilities and authorities to someone else. The person receiving the decision-making authority is known as an agent or an attorney in fact, and can be almost anyone, as long as that person is willing and capable of serving. Further, the kind of authority you pass to your agent is entirely dependent on you.
But when will your agent receive the ability to make decisions for you? If you are creating a springing power of attorney, your agent cannot begin representing you until certain events take place. These events are often referred to as conditions precedent. What they do is establish what has to take place before your agent receives decision-making authority.
In most situations where people create springing powers of attorney, the conditions preceded require that the principal (the person making the power of attorney) has to become incapacitated before the agent can begin representing his or her interests.
In other words, with the springing power of attorney, your agent cannot make decisions for you until you lose the ability to make decisions for yourself.
Non-Springing Power of Attorney
With a non-springing power of attorney, your agent receives the ability to make decisions on your behalf immediately once you create the power of attorney document. There is no need for additional events take place before the agent can begin representing you, and as long as he or she is capable of making choices, your agent will serve as your representative right away.
Which Power Should You Use?
Deciding which power, or which type of power of attorney, is appropriate for you is something that takes a little time and thought. Many younger people, for example, prefer springing powers of attorney because they do not believe they will lose capacity anytime soon. Older people, or those with many responsibilities, often prefer non-springing powers because they take effect immediately, and don’t have to involve possibly complicated determinations of capacity.
If you’d like more information about springing or non-springing power of attorney, contact us for more details.
Parman & Easterday