A power of attorney is a document that gives someone broad powers to act for you.  It’s an important document that most people should have.  It allows whomever you nominate as your representative (attorney-in-fact) to access your bank accounts, pay your bills, and do numerous other financial transactions for you.  There are several different types of powers of attorney, including a durable power of attorney, a simple power of attorney, and a springing power of attorney.

Durable Power of Attorney

Under Pennsylvania law, all powers of attorney are presumed durable unless the power of attorney specifically states otherwise.  A durable power of attorney is simply one that does not end when the principal (the person who gives another power over their financial affairs) becomes disabled or incapacitated.  A durable power of attorney becomes effective when the principal and the attorney-in-fact sign the document.

Simple Power of Attorney

A simple power of attorney is the opposite of a durable power of attorney.  The simple power of attorney ends when the principal becomes disabled or incapacitated.  As powers of attorney are normally used when the principal is disabled or incapacitated, these are pretty rare.

Springing Power of Attorney

A springing power of attorney is a power of attorney that only becomes effective at a certain date in the future or when some event occurs in the future.  The date or the event must be written into the power of attorney.  Oftentimes, the event that makes the power of attorney become effective is when the principal becomes incapacitated.  If you choose to make the power of attorney “spring” when you become incapacitated, then you should include some guidelines for how it should be determined that you are in fact incapacitated.  You may want to name some individuals who can say when you become disabled, such as close family members or friends who are not your attorney-in-fact.  Alternatively, you may want to say that two psychologists or doctors must say that you are incapacitated.  The doctors or psychologists could sign the form at that point, and the power of attorney would become effective.

As a general rule, we caution against springing powers of attorney.  If you become incapacitated suddenly, it could be difficult for your proposed attorney-in-fact to get the necessary signatures, stopping him or her from being able to take care of your financial matters, some of which may need to be taken care of relatively quickly. 

Many people want to use a springing power of attorney because they fear their attorneys-in-fact using the power of attorney to steal their money and take other negative financial actions against them.  If you are afraid that your potential attorney-in-fact will do this, you should not give them power of attorney.  Your attorney-in-fact needs to be someone you fully trust to make the best decisions for you when you no longer can.  You need to be able to rely on this person to not cheat you out of your money.

No matter what type of power of attorney you choose, it is best to work with an attorney to make sure that you are protected.  After it is drafted, we recommend that you keep the original in a fire proof safe in your home and tell your attorney-in-fact where it is located.  If you store it in a safe deposit box, your attorney-in-fact will not be able to access it when they need it, making the power of attorney useless.