To say that the COVID-19 pandemic changed many of our day-to-day activities and habits is an understatement. Estate planning and how we approach it has been no different. The COVID-19 pandemic has not only emphasized how unpredictable life can be, but also created personal uncertainty for many, causing both young and old to start thinking earlier about estate planning.
The pandemic especially had an effect on Missouri’s most common type of power of attorney in estate plans – the durable power of attorney for financial purposes. More people are now executing these documents and making them effective immediately as opposed to upon the occurrence of a future event.
As the name implies, it’s a power of attorney that is durable, retaining its effectiveness even after the individual who executed the power of attorney, known as the principal, becomes incapacitated. This article specifically discusses two different forms of the durable power of attorney: 1) the “springing” durable power of attorney for financial purposes, which becomes effective upon a future event, such as one’s incapacity and 2) the “non-springing” durable power of attorney for financial purposes, which becomes effective immediately upon execution. Both allow an individual, commonly known as your “agent” or “attorney-in-fact,” the ability to manage your finances and business affairs when you are unable to. While they achieve the same end goal, they do so on different terms.
A springing durable power of attorney “springs” into effect upon the occurrence of a future event, which oftentimes is dictated in the document for that individual to be declared incapacitated by either one or two physicians. If such future event does not occur, then the power of attorney never becomes effective. Many people initially like the idea of springing durable powers of attorney because they are uncomfortable with making their power of attorney effective immediately, especially while they still have capacity and are able to manage their own affairs. However, the downsides to a springing power of attorney include delays in being able to use such power as soon as the need arises. As we know too well, doctors were even less accessible during the pandemic. As a direct result, an agent under a springing durable power of attorney would have to wait longer periods in order to obtain the necessary authorizations from physicians for a springing durable power of attorney to become effective.
A non-springing durable power of attorney, on the other hand, avoids the delays often associated with a “springing” durable power of attorney. Because it becomes effective immediately upon execution, this type of durable power of attorney certainly came in handy for many during the pandemic, perhaps assisting with the financial affairs of an elderly loved one or a child away at college. However, even though such powers of attorney can be extremely convenient, this type may seem daunting to some because it gives your agent the authority to act immediately upon you executing the power of attorney. A frequent concern of clients is that an agent may be tempted to commit fraud or otherwise abuse their authority. This concern is not unfounded. However, it is important to keep in mind that your agent is precisely that – your agent. Your agent owes you, the principal, a fiduciary obligation to exercise the powers conferred in the power of attorney in your best interests. If your agent breaches this duty, they can be held liable in court for such breach.
Both types of durable powers of attorney come with their own set of advantages and disadvantages. I learned early in my practice that no two estate plans are alike, so I strongly recommend consulting with professional legal counsel to advise in this area in order for you to make the best possible decision for your specific circumstance.
Regardless of the type of durable power of attorney for financial purposes you may choose, both types, and for that matter, all estate planning documents, must be executed by an individual who is of sound mind – meaning they must have requisite mental capacity to understand their actions. If you are assisting someone in executing a power of attorney and you are not entirely sure such individual meets the mental capacity requirement, for which the threshold is fairly low, you should consult not only with an estate planning lawyer but also a physician.
Charli Steed is a senior associate in the tax, trusts and estates practice group at Spencer Fane LLP. She can be reached at firstname.lastname@example.org.
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