When Does a Power of Attorney Become Effective?

May 15, 2014

A power of attorney is a legally binding device that is used to give someone else the power to act for you.

Incapacity is common among elders. A certain type of power of attorney is used to empower a decision-maker who could act on your behalf if you were to become incapacitated at some point in time.

Durable Power of Attorney

A durable power of attorney is used to name a representative who is empowered to act on your behalf in the event of your incapacitation. A power of attorney that is not durable would no longer be in effect if the grantor of the power was to become incapacitated.

If you execute a durable power of attorney, you decide when it will become effective. It would be possible to set a particular date in the future, but this is not practical because you don’t know if or when you will become incapacitated.

To be prepared throughout your life you could simply make the durable power of attorney effective immediately.

Another option exists in some jurisdictions. You can stipulate that the power of attorney will only go into effect if you do become incapacitated. This would be called a springing durable power of attorney.

Preventing a Guardianship

If you do not have a durable power of attorney in place, the court could be petitioned to appoint a guardian to act on your behalf if you were to become incapacitated. There are some drawbacks that go along with a guardianship proceeding.

The person that is chosen by the court to act as the guardian may not be someone that you would have chosen on your own. Family members can disagree with regard to the appropriate choice of guardian, and this is another potential problem that could arise.

You can take the matter into your own hands and select your own potential decision-maker through the execution of a durable power of attorney.

Incapacity Is Common

The subject of future incapacity is a sensitive one, but it is best to confront unpleasant realities head on. Once you reach the age of 65 it becomes statistically likely that you will live into your 80s. Approximately 45 percent of people who have reached the age of 85 are suffering from Alzheimer’s disease.

Alzheimer’s is a major threat, but it is not the only cause of incapacitation. When you consider these statistics, you can see that incapacity is quite common among those who have reached an advanced age.

Hopefully, you will be able to make your own decisions throughout your life. However, it is best to err on the side of caution and prepare for possible incapacity. When you execute a durable power of attorney, you can prevent a guardianship proceeding and make sure that a decision-maker of your own choosing is empowered to act if it becomes necessary.


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Incapacity Planning in Davenport: What’s the Difference Between a Power of Attorney and a Guardianship?
Power of Attorney in Davenport: Who May Act as an Agent?

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