This is a tricky question because every power of attorney is different and therein lies the confusion. There are two types of triggers for an agent under a power of attorney to be authorized to start acting for the principal. The first is a Springing Power of Attorney. In this type of instrument there is a condition, usually some sort of incapacity, that needs to be satisfied before the agent can act for the benefit of the principal.
I do not use springing powers. They are very hard to draft without causing problems for the agent. If the intent of having a power of attorney is to ensure continuity of decision making without court involvement, the springing provision frustrates that intent. Most financial institutions will have different rules about what constitutes incapacity and likely block the agent’s ability to act on behalf of the principal in a timely manner. And even if the document specifies what incapacity is, getting the evidence to back it up is often time consuming or not available and each institution is likely to treat that evidence differently.
Then there is the reason people would even want the springing provision at. Some simply want autonomy until they need the help. But often that suggests that they lack confidence or complete trust in the person they have named as agent. If you picked a person you feel is trustworthy and has good judgment why would you worry that they would not act responsibly or honor your wishes? So if you do not have confidence your agent will act responsibly you probably should not put them in the position of trust in the first place. It is better to have a court appoint a guardian if you have no one you trust.
For healthcare decisions, most care providers are much easier to deal with and will likely seek the principal’s input and not fuss over a springing provision.
So for most people (and all of my clients) a standard non-springing POA is the better choice to ensure efficient continuity of decision making.
About the Author
Robert M. Slutsky has practiced Elder Law since 1992 and was one of the area’s first elder law attorney. Mr. Slutsky advises clients on Medicaid and Asset Protection Planning, Guardianships, Wills, Trusts, Powers of Attorney, Estate Administration, Special Needs Planning and General Estate Planning. He has represented for profit and non-profit elder care providers and the Pennsylvania Department of Aging. Mr. Slutsky has been the solicitor for the Montgomery County Office of Aging and Adult Services, the Area Agency on Aging for Montgomery County, for over 15 years.