We believe that our clients should have a Durable Power of Attorney as part of their overall estate plan; this can eliminate the need for establishing a guardianship in the incidence that an individual becomes incapacitated or disabled.  However, some clients may seem reluctant to do this since the power would be effective immediately.  There is therefore, the possibility that the Attorney-In-Fact could exercise the power during the principal's life, without his or her consent.

Under the new Springing Power of Attorney, an individual can make such a Power of Attorney effective only upon his or her disability, incapacity, or incompetency.  Therefore, you can avoid the imposition of a guardianship without having to place a fully exercisable instrument in the hands of anyone currently.  This Power of Attorney can be revoked at any time by the principal.

This, when properly used, could be a great benefit for your estate; however, if misused it could leave you and your estate in a position that may not be in your best interest or in that of those who depend on you.

It is important to remember that the state laws governing the Power of Attorney vary significantly from state to state. For instance, don't automatically assume you can use a Power of Attorney for health care decisions. Some states do not allow such a conditional Power of Attorney as the Springing Power of Attorney.  Check with your legal advisor before you act on this to be sure that your decision fits your state laws. It is important to remember that a Durable Power of Attorney is never a substitute for a will.