What is the Distinction Between a Durable and a Springing Power of Attorney?

What is the Distinction Between a Durable and a Springing Power of Attorney?

If you are considering estate planning, or if you are thinking about planning for your financial or health care future and who you might trust to make important decisions on your behalf, it is essential to understand how powers of attorney work in Florida. There are many different types of powers of attorney, and there are different terms that are used to describe those powers of attorney. Two terms that are commonly used are “durable” and “springing” powers of attorney. To discuss the distinction between durable and springing powers of attorney, and how and when they may be applicable or available, our Florida estate planning lawyers want to provide you with more information about the power of attorney in general. Then, we will clarify the distinction between durable and springing powers of attorney.

What is a Power of Attorney?

To understand the distinctions between a durable and a springing power of attorney — and whether and when they can be used — you should understand what a power of attorney entails and what it does. According to the Florida Bar, a power of attorney is “a legal document delegating authority from one person to another.” It is a legal document, and in that document “the maker of the power of attorney (the “principal”) grants the right to act on the maker’s behalf as that person’s agent.” The specific type of authority that the principal grants to the agent will depend on the type of power of attorney and how the document is worded.

Powers of attorney can be used for narrow circumstances or can give much broader power to the agent. In some cases, for example, a power of attorney will only be used to allow an agent to handle legal issues for the principal in the sale of particular real property. In other circumstances, the power of attorney might be worded such that the principal gives the agent broad power to make almost any legal decision on their behalf. In order for a power of attorney to be valid, it will need to be signed by the principal as well as by two witnesses, and it must be notarized to validate the signature of the principal. The agent must be at least 18 years old to be eligible to serve in this role.

What is a Durable Power of Attorney?

The term “durable power of attorney” means that the power of attorney document, and the authority it gives the agent, will continue even if the principal becomes incapacitated. In other words, the power of attorney remains durable and effective even upon the principal’s incapacity. Generally speaking, for a power of attorney to be a durable power of attorney, the document must make clear that the agent’s ability to make legal decisions on behalf of the principal will survive even if the principal becomes incapacitated. According to the Florida Bar, the majority of powers of attorney that are executed in Florida are durable POAs.

Given that the term “durable power of attorney” refers to the length of time that a power of attorney survives, it is important to understand that a durable power of attorney can also be a “general power of attorney.” A general power of attorney gives the agent broad authority to act

legally on behalf of the principal. The document typically must provide the specific acts the agent can undertake on behalf of the principal. A “limited power of attorney” typically will not be a durable power of attorney since a limited power of attorney only grants the agent the authority to act on behalf of the principal for a specific act (like the sale of a home).

What is a Springing Power of Attorney?

In general, a “springing power of attorney” is a durable power of attorney as well, but it is essential for Florida residents to know that Florida does not use springing powers of attorney any longer. When a power of attorney is “springing,” it means it takes effect when a certain condition is met. In most cases where a person would have a springing power of attorney, the power of attorney — and the authority of the agent — would take effect once the principal became incapacitated. For most estate planning conducted now, the preference is for an immediate durable power of attorney as opposed to a springing (and durable) power of attorney. The idea is that springing powers of attorney can be subject to abuse, and that it is clearer if a person creates a durable power of attorney that takes effect immediately.

At the same time, it is important to know that a health care surrogate designation under Florida law is, in many ways, a form of a springing power of attorney for health care that is still used. This is a document that a principal fills out to designate another trusted person to make health care decisions on their behalf in the event that they become incapacitated and cannot make health care decisions for themselves. The health care surrogate designation is a type of advance directive, and it only takes effect once the person creating the document becomes incapacitated.

Contact a Florida Power of Attorney Lawyer

If you have questions about powers of attorney or need assistance, one of our Florida estate planning attorneys can help. Contact Loughlin Law, P.A. today for assistance.

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