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Who should I name as my financial power of attorney?

Who should I name as my financial power of attorney?

This month we will discuss the subject of powers of attorney. In week one, we will discuss how to name a financial power of attorney. This is also known as a durable power of attorney.

There are many things to consider when appointing a financial power of attorney (aka an attorney-in-fact). This is an important position. Whoever you appoint would have the ability to make decisions regarding how you manage your finances. While it may seem obvious, it’s important to focus on choosing someone who is organized, trustworthy, and financially responsible.

What powers does an agent have when they have a financial power of attorney?

As stated earlier, the agent with a financial power of attorney can handle your finances just as you can. An agent will have the ability to go to your bank and handle banking transactions. They can contact your investment account broker and manage those funds. They can handle your insurance and sell your house. Of course, you want your agent to only make financial transactions in your best interest while you are incapacitated.

Can things go horribly wrong? Yes! Your agent has the power to clean out all of your bank accounts and sell your home. Heck, if they wanted to, they could take your assets, move to Fiji, and set up a little beach bar! I want to reiterate: It’s important that you choose someone who would never even think of doing something like that. You need to choose someone who will only have your best interest at heart.

Who should be your financial power of attorney?

When considering who should serve as a financial power of attorney, a lot of people are compelled to choose someone close to them. A lot of times this will be a relative, such as your children or possibly a sibling, but it doesn’t have to be. The agent could also be a close friend or even a professional if that is who fits that role in your life. In our practice, we like to make sure that our client acknowledges this very important point: the person you name as your agent in a financial power of attorney will have the ability to handle your finances pretty much the same as you will.

Choose an agent who can communicate effectively

Not only do you need to trust your agent, but we also recommend that you find someone that other people trust! While this element is not completely necessary, it may be important to you that your agent be relied upon to communicate important information effectively with the people in your life.

For example, if one of your relatives says to your agent: “Hey, my Aunty saved a lot of money and invested it well, how much does she have now and what has the spent money been used for?”. Ideally, you would have an agent that relatives intuitively trust to spend your funds in your interest. However, it would be really awesome if your agent took the time out of their day to respond thoroughly to your relative’s questions.

woman wearing a bright yellow sweater holding a smart phone and looking down. The caption says "3 ways online banking simplifies transactions" 1. allow direct debit from accounts 2. set up automatic payments 3. the ability to use instant transfer methods
Choose an agent that is comfortable with online banking

Your agent should be good at bookkeeping

In a perfect world, your agent with financial powers of attorney would be held accountable for the transactions coming out of your assets. A good agent can effectively answer questions about spending and back it up with good bookkeeping!

An agent with power of attorney does not have to live in your state

As we mentioned before, the era of digital banking is here and it allows us the option to choose from a larger pool of agents, regardless of their location. Now, many people think that their agent under a power of attorney cannot be someone who lives out of state. And that is simply not true. Sometimes it helps to have somebody who lives in the state, but that is not a requirement in Tennessee. We do so many things by email and telephone, texting, and online business transactions that your financial power of attorney person, your agent, will likely be handling any business transactions online. 

Choose an agent who will outlive you

While this is not a requirement, it is a good idea to think about someone who will outlive you. Generally, when you are using your power of attorney, it’s when you’re incapacitated. While there are times when a durable power of attorney is used on a temporary basis, such as during a medical event, it is more likely going to be during a period when we are at the end of our lives and are experiencing some type of ongoing health condition that is not likely to improve. We recommend that you look for an agent who can help on a continuing basis. A well-suited agent allows everyone to relax and enjoy the time you have left on this earth.

Who should NOT be your durable power of attorney

Again, while it may seem obvious, it is important to reiterate that anyone who is untrustworthy, unlikeable, terrible with money, incapable of balancing a checkbook, or unable to effectively use online banking might not be the best choice for becoming an agent of financial power of attorney. The goal is to find someone who can keep good accounting records and knows exactly where your money went, down to every last penny! A good agent is someone who is willing to communicate with everyone without hesitation. The main point is that no one in your circle should be concerned that your agent is taking advantage of you if you are incapacitated.

Now, if you are not incapacitated, your agent should only be acting if you are telling them to do so. Even if you have your power of attorney take effect immediately, your agent can and should only act under your direction. If you find that the agent acts otherwise, there are legal actions you can take against them in court. 

In conclusion

A power of attorney is a useful tool for organizing the “adulting” part of your life, especially in incapacitation. A financial power of attorney should be someone that you absolutely trust; someone who will not give pause to others in your life. Someone who is financially responsible and organized, and someone who is familiar with handling online transactions. It does not matter if your agent lives in your state. In short, find an agent you believe will always have your best interest at heart.

There are many types of powers of attorney. Many powers of attorney are used when creating a well-thought-out estate plan. Do you think you could use a durable power of attorney in Nashville? Schedule an initial call to see if we can help you with your situation.

The Untold Story of Michael Oher’s Conservatorship in Tennessee

The Untold Story of Michael Oher’s Conservatorship in Tennessee

Did Michael Oher need a conservatorship? The real question behind the recent news that Oher requested (and has been granted) a termination of his conservatorship is whether or not he needed one in the first place.

Today we’ll go over the necessary criteria for a conservatorship, and what information courts need in order to grant one. We’ll cover the usual processes for putting a conservatorship in place, and look at how Oher’s conservatorship was different, based on public records available. 

Who is Michael Oher?

Michael Oher’s football success began long before his rise to fame. Born in Memphis, Tennessee, Oher grew up in a disadvantaged neighborhood. Through the guidance of the adults in his life, he was able to show his football skills to the right people and become a successful NFL player. This eventually led to the publication of The Blind Side: Evolution of a Game by Michael Lewis, which was adapted into the movie “The Blind Side”.

Understanding Michael Oher’s early years is crucial to grasp the circumstances that led to his conservatorship.

Growing up in a disadvantaged environment, Oher faced numerous challenges. However, he was not without adult guidance. He moved in with the Tuohy family before his senior year of high school with the understanding that they were adopting him.

Recent news articles have made it clear that the adoption didn’t happen. Michael Oher was not adopted, even though he could have been; the state of Tennessee has laws  in place that permit adult adoption, which 18-year-old Oher would have been eligible for.

Instead, Michael Oher was placed into a conservatorship run by the Tuohys.

A Quick Look at Conservatorship

There are a few finer points to conservatorship in Tennessee that are important to know.

The Purpose of Conservatorship

Conservatorship is a legal arrangement where an appointed conservator assumes the responsibility of managing the personal and/or financial affairs of an individual who is unable to do so themselves.

This legal process exists to protect vulnerable individuals, ensuring their well-being and safeguarding their interests. There have been ongoing updates to conservatorship law in Tennessee in order to guarantee that a conservatorship is in the best interests of the individual.

The conservator’s job is to manage the personal and/or financial affairs of the individual under conservatorship because they cannot perform those duties themselves. Most commonly, conservatorships are a way for adult children to take care of aging parents when they can no longer take care of themselves.

The Conservator’s Role

A conservator is tasked with making important decisions related to the individual’s well-being, which could include medical care, housing, and financial management. Their responsibilities extend to ensuring the individual’s safety, providing necessary support, and advocating for their best interests.

With the authority granted by the court, the conservator has the power to make significant decisions on behalf of the individual under conservatorship. This often includes medical decisions, which means that taking on a conservatorship requires careful consideration of the individual’s needs and preferences while adhering to legal and ethical guidelines.

Michael Oher’s Conservatorship

Since the court granted a conservatorship over Oher in 2004, the Tuohy’s have been responsible for his important decisions for the past two decades, despite Oher being a legal adult. Now he’s filed a petition to end the conservatorship, which places the motivations and processes behind the original decision under heavy scrutiny.

The big question: did the Tuohys place Oher under conservatorship to protect his best interests, or did they use it to take advantage of him? Could the guidance they provided him have been given without a conservatorship?

Initiation of Conservatorship

In order to be granted a conservatorship in Tennessee, one of two criteria must be met:

One, there has to be an emergency situation, or two, the person under conservatorship has to live with a medically evaluated disability that affects their ability to take care of themselves.

There was no emergency, urgent or otherwise, when Oher was placed under conservatorship, and there was no qualifying disability. In fact, Oher’s order specifically states that he doesn’t have a disability, which raises more questions than it answers.

Without either of those criteria being met, it seems odd that the Court found a conservatorship to be in his best interest. In addition, there was only one court hearing to review the conservatorship, and it did not involve the input of any medical experts. 

They also waived the guardian ad litem, which is unusual. The guardian ad litem is an attorney appointed by the court to make a recommendation following an investigation into whether someone needs a conservatorship. They’re the safeguard on behalf of the individual, and the guardian ad litem is hardly ever waived. In the cases where it is waived, it’s typically because the person filing for conservatorship is a biological parent of a disabled adult child who has been cared for by their parents their whole life. 

The fact that the guardian ad litem was waived means that there was one less person to look out for Oher’s best interests.

Problems with Oher’s Conservatorship

The main problem with Oher’s conservatorship is that he didn’t know he was under one. He’d been told it was an adoption equivalent, which it was not. When he discovered this in 2023, he started to take steps to end the conservatorship.

While it’s important for young adults to have the guidance of trusted adults, there appears to be no logical reason why Oher couldn’t have made his own medical and financial decisions, which is why this conservatorship is under so much scrutiny. Oher alleges that the Tuohy family has made money from the selling of Oher’s image and life story, which raises questions about the intention of the conservatorship.

The level of guidance and support that Oher received from the Tuohys was not a result of conservatorship. Adult adoption and even just mentoring are two common ways to provide the same level of guidance and support provided by the Tuohys without  legal oversight by the courts. 

Conservatorships are Intended to Improve Quality of Life

The purpose of conservatorship in the state of Tennessee is to improve the quality of life for the person under conservatorship. Since the time that Michael Oher’s conservatorship was granted, there have been some changes to the process of obtaining a conservatorship, but it is generally the same as in 2004 when Oher’s conservatorship was granted. 

Today, a judge has to find that conservatorship is the least restrictive alternative for the individual. If the individual has the ability to understand and sign a power of attorney that would fulfill the same intentions of those filing for conservatorship, the conservatorship is unlikely to be granted.

Get Help Understanding Conservatorship Today

Though there are plenty of questions surrounding Michael Oher’s conservatorship, there are laws in place to prevent a situation like this from happening.

Used properly, a conservatorship can be a helpful legal process to improve the quality of life and care for your loved ones. If you want to discuss whether conservatorship may be right for your situation, Graceful Aging Legal Services is here to help. Schedule a call with us today to start the conversation about what’s best for your loved ones.

Probate in Tennessee: Factors that Can Delay the Process and Strategies for Minimizing Delays

Probate process in tennessee

Probate is the name for the legal process of distributing assets after someone passes away. These assets can include bank accounts, real estate, vehicles, retirement accounts, life insurance, and financial investments. Before the assets can be distributed, however, they must first be gathered and used to pay creditors. 

After that, the heirs can finally receive their distribution of the estate. However, even then, there are several factors that can still delay the distribution process. In our practice, it is common for probate to last about nine months. In more complex cases, probate can easily last several more months or even years. These delays ultimately mean less money and more headache for the surviving family. 

Let’s go through the factors that cause delays in probate, and discuss what steps can be taken to minimize the delay.  

1. Passing away without an Estate Plan

If you pass away without an estate plan, your loved ones will have to go to probate court. The court will appoint someone among them to be the “Personal Representative.” The Personal Representative will be responsible for contacting all of the financial institutions about your death. They will also be responsible for using your funds to pay creditors and ultimately make distributions to your heirs. 

When there is no estate plan, the process for appointing a Personal Representative can be seriously delayed. The family will have to come to a consensus on who the Personal Representative will be before they present their choice to the court. Moreover, whoever is selected as Personal Representative is often not prepared for the role, as they had not been told to expect it. The process of going through all of your finances and contacting all of your financial institutions might be overwhelming for them, especially if they did not know your finances very well. Moreover, they will be responsible for mediating tension between the family, which is made even more difficult if members of the family do not think you explicitly wanted them to serve as Personal Representative.

Having an estate plan would minimize all of these consequences and delays. By having an estate plan, your family will already know who you want to represent your estate, which will make the process for appointing a representative much smoother. The person you select to represent your estate will also be better prepared for the role, as they are aware that they will one day need to fulfill the role. 

The best way to minimize delays in probate is thus to have a clear estate plan in place, and to let your family and loved ones know about your intentions. 

2. Family Tension

Even with an estate plan, family dynamics can still play a major role in probate. For example, if the only major asset that you have at the time of your death is your house, and one of your heirs would like to live in it while the other heirs would rather sell it and keep the sale value, tension will ensue and attorneys may need to get involved. All of this will ultimately lead to a delay of the probate process, and may ultimately divide the family in an irreparable way. 

Feuds such as the one described happen even in the most loving of families. To avoid these feuds, it is important to not only have an estate plan, but to have one drafted by an experienced estate planning attorney. An experienced estate planning attorney will be familiar with cases such as the one described and will be able to help you think through exactly what you would want to happen if these cases occur. Your estate plan will thus be better able to help your family navigate your precise wishes for your assets, ultimately easing tension and expediting the probate process. 

Hiring an estate planning attorney to draft your estate plan is one of the most important steps you can take to minimize probate delays. 

3. Financial Complications

If you keep your finances private, it will be difficult for your intended heirs to know what to expect after you pass away. They may not even know where you bank and what financial investments you have. The more difficult it is for them to know your finances, the more difficult it will be for them to notify your financial institutions of your death and gather accounts. 

Furthermore, if you are in debt or are not paying your taxes, your Personal Representative will be responsible for using your assets to pay your creditors and the IRS. This can cause serious delays to the probate process, especially if the Personal Representative was unaware. Creditors will ensure they receive their payments by filing claims against the estate through probate court. These claims ultimately slow down the probate process as each claim requires a hearing before a judge. 

To save your family time, headache, and grief after your death, it is important that you keep your finances in order. Pay off debt when you can, and keep a clear record of it. File your yearly taxes appropriately. Let your loved ones (especially your Personal Representative) know of your finances and how to contact each financial institution in case something happens. 

Even in the best of cases, probate takes a while. To minimize delays, we recommend having an experienced estate planning attorney draft your estate plan, clearly telling your loved ones of your intentions, and keeping your finances in order as much as possible. Your loved ones will already be filled with grief after your death. The best gift you can give them is preparation. 

Here at Graceful Aging Legal Services, we offer software that can help our clients keep their estate in order. Contact us at 615-846-6201 or [email protected] if interested.

Every College Student Needs These Legal Documents

Every College Student Needs These Legal Documents

The stress of leaving home and becoming an adult can be difficult for anyone. It is especially tough for college students and young adults who have to face the uncertainty of their future. They have to support themselves and are going to gain the power to make decisions on their own, for better or worse.  However, there are a few legal documents that they can get to make the transition easier.

TLDR;

Every college student needs powers of attorney for finances, powers of attorney for medical decisions, and an advance directive for healthcare. They should also fill out a FERPA waiver so that a parent or other trusted adult can access their student records (if needed). Not only are these documents practical in getting help with the big stuff, but they are a great lesson in what “adulting” is all about. 

What is a “Power of Attorney” or POA?

A power of attorney is a legal document in which the principal (the person granting the power of attorney) grants another person (the agent) the power to act on their behalf. For example, an agent could help the principal make and carry out decisions about the student’s finances, health care, and other important matters.

In most cases, we create two types of powers of attorney- one for financial issues and one for medical issues. It is important to note that the college student needs to be the one who initiates and discusses their powers of attorney with a lawyer. A parent cannot create a power of attorney document for their child.

How to choose the best agent for powers of attorney

For most young adults, the parents are the trusted partners in making important decisions. Therefore choosing a parent as an agent for power of attorney makes sense for a college student. However, it’s important that the individual assigning the powers choose what is best for their situation. Here are some things to consider:

For medical powers of attorney – choose an agent who will be able to carry out the principal’s wishes

A college student should choose an agent who will be able to make medical decisions according to their personal preferences. Who do they want to have to communicate with the hospital in an emergency? Does that person support their values and would they be able to carry them out in the event of a difficult decision? 

For example, when I was in my late 20s and in law school I prepared my first advance directive. When I tried to have a conversation with my parents about what I wanted for end-of-life care, it was unfathomable to them that I would want to discuss it. I also knew that based on my wishes, it would be very difficult emotionally, if not impossible, for my parents to honor my choices. For that reason, I selected my brother and best friend as my agents. In short, a college student needs an agent who can carry out their preferences for medical care.  

For financial powers of attorney – choose a responsible and trustworthy agent

A financial power of attorney agent should be trustworthy. They need to be someone who is responsible for their own finances and will put the principal’s best interest above their own.

Anyone who chooses an untrustworthy agent would risk losing all of their savings. What’s to stop an agent from draining a bank account and running off to Fiji? While this is an extreme example, and there are legal remedies for someone who abuses their power like that, it is better to not have to deal with that happening.

What is an “Advance Directive” and why does a college student need one?

An advance directive is a written statement by a patient or their legal representative that outlines their wishes for medical treatment in the event of incapacity or death. Every college student should take the time to document their preferences for medical-related decisions.

For example: In a medical emergency does the individual want CPR if their heart stops? Do they want a ventilator if they cannot breathe on their own? What about a feeding tube or life support?

Although nobody wants to think of these scenarios, it is helpful to have these decisions spelled out. It’s stressful for friends and family to make these types of medical decisions.

I want to make it perfectly clear: Having an advance directive is important for everyone to have, no matter their age or health. It is also important to review advance directives through each stage of life. The treatments that we want at age 30 or 40 may not seem like such a great idea as we reach into our 90s or 100s. 

What’s the difference between a power of attorney and an advance directive?

It’s easy to see why people confuse a power of attorney with an advance directive. So, what is the difference? A power of attorney grants an agent the ability to act on behalf of a principal, should they become incapacitated. An advance directive for healthcare, on the other hand, specifically addresses what someone wants if they are unable to make decisions for themselves. It is a written record of what to do (and not to do) in an emergency or end-of-life scenario.

When does a power of attorney or advance directive go into effect?

Financial POA

There is a lot of flexibility when it comes to the terms of a financial power of attorney. A limited power of attorney can go into effect when a specific event happens, such as incapacitation. There are also terms that make a power of attorney go into effect immediately. A qualified attorney can create a power of attorney to suit anyone’s situation.

Medical POA

When it comes to medical care, a healthcare provider will always make an attempt to communicate with the patient first. In the case of incapacity or impaired judgment, however, a doctor will communicate with the medical agent or refer to an advance directive instead. For example, let’s say a patient is in a coma or under anesthesia. The doctor will refer to a medical agent or advance directive when making a time-sensitive decision for their care.

*Click here to learn more about when a POA goes into effect.

Powers of attorney and advance directives are useful at any stage of life 

Powers of attorney and advance directives are useful, no matter the age or stage of life a person is in. While most older adults have powers of attorney and advance directives in their estate plan, a younger adult could make use of them too! For example, a college student can give powers of attorney to their parents and create an advance directive just in case they need help. These legal documents can help the student navigate the essential functions of “adulting” like managing bills, health and property insurance, leases, and more. Additionally, in the event of a tragedy, a medical power of attorney will allow the parent to make decisions on the child’s behalf. This is why it’s important to have powers of attorney and advance directives in place, no matter the stage in life. 

Hire an attorney to draft a power of attorney

Although there are forms online for creating powers of attorney, having a lawyer draft your document will ensure that it complies with all the legal requirements set forth by the state. Online forms can fall short of holding up in court. With an insufficient power of attorney, or a lack of one at all, a family may have to fight for their loved ones’ wishes in court. The process of going to court under these circumstances is painful, expensive, and time-consuming. Most people want to avoid putting this kind of stress on their families.

Anyone can make their own advance directive

While the subject matter is difficult to think about, the process of creating an advance directive is easy. Just download the form online and prepare it at home. There’s no need for an attorney. To make the advance directive legal, sign it in front of a notary or two witnesses. For your convenience, we’ve included a link to the Tennessee Advance Directive for Healthcare form here. As a courtesy to our clients, our firm will include the preparation of advance directives, along with a notary, as a part of the flat-rate estate planning package or the “Adulting Package”.  

6 college students gathering in front of a cell phone to take a group photo. They are all smiling
Ready for college?

In conclusion

Powers of attorney, advance directives for healthcare, and a FERPA waiver are documents that every college student should have. They are among the many important decisions a college student will make during their lifetime. It’s never too early to prepare for life’s unknowns. 

GALS offers an ”Adulting” gift certificate for college students!

Looking for the perfect graduation gift? A gift certificate to our “Adulting” package is a great way to help prepare a young adult for life’s “what-ifs”. In addition to legal counseling, this package includes powers of attorney for finances, powers of attorney for medical care, a FERPA waiver, and an advance directive with a notary. Click here to buy your gift certificate. All you need is the name and email address of the recipient and we will take care of the rest! 

When does a Power of Attorney expire?

When does a Power of Attorney expire?

This week we will discuss when a power of attorney can expire. A power of attorney is a legal document that allows someone else to make decisions on your behalf. It is created for a specific purpose such as financial or health care decisions. If the power of attorney expires, it no longer gives that person the authority to make decisions on your behalf. 

When you die

A durable power of attorney for finances automatically expires when you die. Once your attorney in fact gets the news of your passing, they no longer have the ability to carry out any actions on your behalf.

For a healthcare power of attorney, the same conditions apply. However, there is one caveat. The healthcare power of attorney will typically allow your healthcare agent to handle the disposition of your body, make the funeral and burial arrangements, or order an autopsy if warranted. Additionally, the agent can order medical records after your passing if needed for some legal reason. Other than that, the general rule is that all powers of attorney pass away when you do. 

A power of attorney can expire if the original purpose no longer exists.

A power of attorney can expire if the original purpose no longer exists. For example, if you created a power of attorney to manage your finances, but you no longer need help with those decisions, the document may expire. Please note that you cannot revoke powers of attorney if you are incapacitated.

It is important to document the original purpose of the power of attorney and keep track of changes to your situation. You should update your powers of attorney when changes occur. This helps to ensure it’s still possible to use a power of attorney should the need arise.

If you revoke it

Unless you’re incapacitated, you can revoke a power of attorney. Revoking the power of attorney removes authority from the person you appointed. This is not something we’d necessarily recommend doing without good reason, but it’s possible. We strongly suggest that you name someone who is trustworthy so that you don’t have to revoke it.

However, if you want to revoke a power of attorney, do it in writing. Include the name of the person who is having their authority revoked. We recommend speaking with an attorney if you have to revoke a power of attorney.

image of a military member leaving home for a deployment

Limited powers of attorney

A limited power of attorney is a document that allows someone to make decisions on behalf of another person. This happens when someone cannot be present to carry out decisions for themselves. A Limited Power of Attorney allows someone else to act as your proxy. For example, military families give powers of attorney that expire to a friend or spouse while they deploy. 

How often should you renew a power of attorney? 

Most powers of attorney are meant to last forever. However, you might need to create a new one to replace an old one. For example, a bank may be hesitant to honor a power of attorney that you signed 20 years ago. They may want you to have it updated. You may also want to update a power of attorney if you move to a new state. 

If you have questions or need to get a power of attorney in Nashville, consider scheduling an initial call. This 15-minute call is free and allows us to see if we can help you with your situation. 

When does a Power of Attorney take effect?

When does a Power of Attorney take effect?

This week we are going to discuss how a power of attorney goes into effect. A power of attorney is a legal document that gives someone else the authority to make decisions on your behalf. But before that power of attorney goes into effect, certain conditions must be met. Let’s get into it… 

How does a healthcare power of attorney go into effect?

A healthcare power of attorney is a legal document that allows one person, such as a spouse or adult child, to make decisions on behalf of another person who can’t make decisions for themselves due to illness or disability. A healthcare power of attorney takes effect if you are unable to make decisions for yourself or communicate those decisions to your doctors. 

For example, if you are in a coma, then you are unable to make decisions. If you have a healthcare power of attorney it will go into effect. This means that your designated healthcare agent can make decisions on your behalf. They will have to follow the instructions that are set out in the power of attorney document. An attorney can help you write out the details of your healthcare power of attorney so that your wishes are clear. 

To illustrate another example, let’s say you have an injury that requires your jaw to be wired shut and both of your arms are broken. It’s going to be very difficult for you to communicate your decisions. While the doctors are going to consult with you as much as possible, having a healthcare agent helps to make sure that your wishes are communicated properly. In short, a healthcare power of attorney can help effectively communicate your medical preferences when you are unable to do so. 

How does a durable power of attorney over finances go into effect? 

Your other power of attorney is your durable power of attorney over your finances. For financial matters, there are two times when a power of attorney can become effective. The first is the immediate power of attorney, the second is the “springing” power of attorney. 

The immediate power of attorney

An immediate power of attorney is exactly what it sounds like. It takes effect immediately after you sign it. If you signed your power of attorney and then asked your attorney-in-fact to go open a bank account for you, they would have the power to do that. 

A springing power of attorney goes into effect at an event

The “springing” power of attorney

The other option is a springing power of attorney. We say it “springs” to life when you become incapacitated. You may also choose any date or other event that will bring it into effect, but you must clearly state that date or event in the document. 

For example, your primary care physician or two other doctors must say you were unable to make decisions for yourself before a power of attorney becomes effective. However, there are multiple ways that this could be written into your documents. Ask a qualified attorney to help you determine the conditions for the power of attorney to become effective. 

Don’t overthink how your power of attorney goes into effect

There are no wrong answers for when to have your power of attorney take effect. However, who you choose as your agent is more important. I encourage you to read our blog posts about who to appoint as your financial power of attorney and healthcare power of attorney. Choosing a proper agent is the most important aspect of a well-thought-out power of attorney. 


In fact, the person that you appoint should follow the same guidelines, regardless of whether you have an immediate or springing power of attorney. However, some people do not want to have anyone else able to act for them while they are able to act. That is perfectly okay. For other people, it’s more convenient to have something immediately available. Again, there’s no wrong answer. 

If you have any questions about powers of attorney and other aspects of elder law, consider getting our newsletter. Each month we dive into a topic and educate our readers. Our newsletter is a great way to stay up-to-date on legal news and developments.