By Reganne M. McMichael, Esq.

A “power of attorney” is an important estate planning tool that allows you to designate an agent to act on your behalf and manage your affairs. 20 Pa.C.S.A. § 5601, et seq. In Pennsylvania, all powers of attorney are presumed to be “durable,” meaning the authorized powers last through any subsequent disability or incapacity. Within a durable power of attorney, a person can choose to have the agent’s authority take effect either (1) immediately upon signing the required documentation or (2) it can “spring” into effect at a later time, usually upon the disability or incapacity of the person granting the power of attorney.

While technically both of these powers of attorney are “durable,” colloquially, the power of attorney that takes effect immediately is referred to as a “durable” power of attorney, and the power of attorney that takes effect only upon disability or incapacity is a “springing” power of attorney. 

While many people are more comfortable executing a “springing” power of attorney which defers the agent’s authority to act until the grantor becomes incapacitated and is no longer able to make their own decisions, it is important to understand the general considerations of both types of powers of attorney, as well as the practical implications that follow the execution of either power of attorney.

Below, we identify five (5) important considerations:

  1. Although an agent should be someone you trust to manage your affairs, any agent that you designate must abide by her fiduciary duty as an agent and act in good faith on your behalf. This means that any action your agent takes must be in your best interest. In the event that your agent is not acting in your best interest, a court can remove her as your agent.
  2. Even if you have created a power of attorney that designates an agent, your agent has no authority to act on your behalf under the power of attorney unless the agent has executed and attached an acknowledgement to the power of attorney.
  3. A power of attorney can grant broad powers to your agent that authorize her to manage a wide range of affairs on your behalf. However, you are able to modify and limit the powers given in a power of attorney.
  4. Some people only want an agent to act on their behalf if they become incapacitated (unable to make decisions for themselves), but determining when a person is considered “incapacitated” can be a challenge. Therefore, a ‘springing’ power of attorney can delay an agent’s ability to act on your behalf, until such a time as you are considered “incapacitated.” 
  5. A “durable” power of attorney, in contrast to a “springing” power of attorney, can be used in situations of convenience, rather than only in situations of incapacity or disability. By executing a “durable” power of attorney that immediately takes effect, you grant your agent the immediate authority to act on your behalf in all situations. 

Although both powers of attorney – durable and springing – have certain implications to consider, executing either type is an important part of your estate planning process as there may be a time when you are no longer able to manage your own affairs. In the event you were to become incapacitated and do not have a power of attorney in place, a court may have to appoint someone to act on your behalf. 

For more information about Power of Attorney or to complete your estate planning documents, call us at 412-209-3200 or email to schedule a free, no-obligation consultation.