Springing Powers (Not Spring Flowers)
Photo from istock Getty Images
Did May spring up on you this year? What about your powers of attorney—are they
springing?
Powers of Attorney (POA) are state specific documents. That means each state has its own
rules on what each document must say and how it must be executed. Because of this, a POA
from Arizona may not work in Ohio and vice versa.
In Arizona, there are three separate POAs:
Financial (also called Durable),
Healthcare, and
Mental Healthcare.
Arizona is only one of a few states that have the latter, so many out-of-state healthcare
documents are ineffective when it comes to helping a patient who has dementia, a stroke, or a
traumatic brain injury.
If you just moved here from another state, you should make sure to update your POA
documents. Snowbirds should have a state-specific set of documents for each state they live.
Difference Between Springing Power and Immediate Power
POAs must identify whether the agent has a "springing" power or "immediate" power. A
financial POA can either have a springing or immediate power.
Springing: If your agent has a springing power, they can only manage your finances and
act for you if you are physically or mentally incapacitated. One disadvantage of naming a
springing power of attorney is that payment of bills may be delayed until all documents
confirming your physical or mental incapacity are signed or a court has determined you
are incapacitated.
Immediate: An immediate power takes effect the moment you sign the document. An
immediate POA provides your agent the instant authority to manage, spend, and invest
your non-trust assets on your behalf; and sign your name on legal documents. This speeds
up the process of paying bills and asset management, but you should have complete trust
in the individual you choose to act as your agent.
Both healthcare POAs only have a springing power. You will continue to make healthcare
decisions for yourself until:
- 1) you can no longer communicate,
- 2) you can no longer give informed consent, or
- 3) you are determined to be legally incapacitated.
Spring into action this month to create or update your POAs.
Cholewka Law would love to help you spring into action! We provide estate planning,
probate, and trust administration services. Please contact us at 480-497-3770 to schedule a
conversation or visit www.gilbertlawoffice.com for estate planning information and videos.