Making plans for the distribution of your assets to your loved ones after you pass away is the issue that is at the core of estate planning. But to be frank people don’t generally die all of a sudden without going through a period of decline and some sort of illness. More and more people are living into their late 80s and beyond, so the stark reality of the matter is that there may well come a time when you cannot make sound decisions for yourself. For this reason it is important to make sure that you address the issue of incapacitation and execute the appropriate documents to protect yourself and your family.
The matter of decision-making in the event incapacitation is generally addressed through the creation of durable powers of attorney. The reason why you would want to execute a “durable” power of attorney is because these instruments remain in effect after the incapacitation of the grantor. Obviously this is your objective, but the downside for some people is the fact that your attorney-in-fact will be empowered to act as your agent as soon as the document has been executed i.e. while you’re still of sound mind.
Some people would prefer not to bestow this power to anyone else unless it becomes absolutely necessary. This can be achieved through the execution of what is called a “springing” durable power of attorney. These instruments do not take effect until or unless the grantor is deemed to be incapacitated.
The thing about springing durable powers of attorney that can pose a problem is the question of whether or not you are in fact incapacitated. Because a physician’s statement attests to the fact that you were incapacitated on a given day does not necessarily prove that you are still incapacitated a year later. Yet, springing durable powers of attorney can serve a useful purpose and they are included in many incapacity plans.