Springing vs immediate power of attorney

You've decided whom to trust with your bills and accounts. Now the drafting asks one more thing: should the document work starting today, or only once you can't manage things yourself?

The second kind is called a springing power of attorney. It "springs" into effect when something happens later.

This page compares it with an immediate one, explains Washington's rules, and helps you choose. It's part of our guide to the four roles in an estate plan.

What is a springing power of attorney?

A power of attorney names an agent to act for you. Most start working the moment they're signed. A springing one waits for a date or an event you choose.

The usual trigger is incapacity. The document says, in effect, "my agent can act only if I can no longer handle my own affairs."

In Washington, the default is immediate. Under RCW 11.125.090, a power of attorney is effective when signed unless the document says it starts at a future date, event or contingency. So a springing document has to say so in its own words.

Who decides that the trigger has happened?

This is the heart of the choice. A springing document doesn't switch on by itself. Somebody has to confirm, in writing, that the event has occurred.

Washington lets you name that person in the document (RCW 11.125.090). It could be your doctor, a close friend, or the agent's backup. You can name more than one.

If you haven't named anyone, or the person you named can't or won't do it, the law fills the gap. For a document triggered by incapacity, Washington requires a written determination by one of these:

• a physician or licensed psychologist who has personally examined you and isn't related to you or your agent by blood or marriage
• a judge or an appropriate government official, in situations such as being missing or stuck outside the country

There's one helpful detail. The person you name to make that call can act as your personal representative under HIPAA, the federal health privacy law. That lets them see your health information and talk with your doctors (RCW 11.125.090).

Springing vs immediate, side by side

That last row matters. Washington ends a power of attorney at incapacity unless it contains durability wording, under RCW 11.125.040. The statute's own examples include this phrase: "This power of attorney shall become effective upon the disability of the principal." Our page on durable powers of attorney explains the rule.

Why people choose springing

The appeal is easy to understand. You aren't ill, and you don't want anyone able to touch your accounts while you're perfectly able.

Springing feels like a lock on the door. Your agent has a key, but it only turns on the day you need help.

It can also make a conversation easier. Some people are more comfortable naming a relative when they know the authority waits until it's truly needed.

The trade-offs of springing

The lock that protects you can also slow down the person trying to help.

• Someone has to write the confirmation. If you named a person to do it, they need to be reachable. If not, your agent needs a physician or psychologist who has examined you, and that takes time to arrange.
• Incapacity isn't always clear. Memory changes often come slowly. There may be a long stretch when you need help but nobody is sure the trigger has been met.
• Banks and others will ask questions. In Washington, a business asked to accept a notarized power of attorney may request a certification from your agent, signed under penalty of perjury. It includes a statement that all events needed to make the document effective have occurred, under RCW 11.125.190.
• Short absences may not count. A trip abroad or a planned surgery may not meet a trigger written around incapacity.

None of this makes springing wrong. It means the details need care: name the person who confirms the trigger, and tell them.

What about a medical power of attorney?

The question matters less here. Even when a medical power of attorney is in effect, you make your own health decisions while you can.

In Washington, an adult is presumed to have capacity. A provider must document why they've concluded you can't make a particular decision before anyone else consents for you, under RCW 7.70.065.

So a health care agent effectively steps in only when needed. Our page on what a medical power of attorney decides covers the role.

Safeguards if you choose immediate

Many people choose immediate and protect themselves in other ways. These options come from Washington's law and from ordinary good practice.

• Choose the agent carefully. This matters more than the start date. An agent is a fiduciary: legally required to act in your interest and follow what you wrote.
• Know the duties. A Washington agent must act in good faith, within their authority, and keep records of every transaction, under RCW 11.125.140.
• Ask for records. You can ask in writing to see the records. The agent must provide them within 30 days, or explain in writing why more time is needed (RCW 11.125.140).
• Decide who holds copies. In Washington, a photocopy generally has the same effect as the original, under RCW 11.125.060. Some people keep the document filed away and tell the agent where it is.
• Keep the right to change your mind. While you have capacity, you can revoke it. Tell your agent and any bank that has a copy.

A typical case

Here is a typical case, a composite. Ruth is 69 and lives in Olympia with two cats and a vegetable garden. She named her friend Carol as financial agent, and she wanted a springing document.

Her lawyer suggested naming who would confirm the trigger. Ruth named her longtime doctor and, as a second choice, her brother. She told both of them, and gave Carol a page listing her bills and accounts.

When Ruth had a stroke two years later, her doctor wrote the confirmation that week. Carol paid the property tax on time, and the cats' sitter never missed a payment.

How to decide

Run through these questions:

1. Do you trust your agent completely today? If yes, immediate is usually simpler.
2. Would a delay in a crisis cause real problems? Bills, a mortgage or care costs make a delay harder.
3. Is there someone you'd want to confirm incapacity? If you choose springing, name them in the document.
4. Will you travel or have planned surgery? An immediate document covers short absences without any confirmation.
5. Have you named a backup agent? Either way, a second name keeps the plan working. See naming a backup in every role.

The practical side, including what banks ask to see, is on our page about when a power of attorney takes effect. If the hardest part is the name itself, the page on naming a friend as power of attorney may help.

Some people want a professional standing by, first or behind someone they love. Kinly includes a financial power of attorney written for your state, and Trella Trust Company can be named as agent or backup. The guide to choosing professional help compares the options.

Common questions

Is a springing power of attorney valid in Washington?

Yes. Washington allows a power of attorney to start at a future date or event, under RCW 11.125.090. The document has to say so, since the default is that it works when signed.

Who can confirm incapacity for a springing power of attorney?

Whoever you name in the document. If you named nobody, Washington requires a written determination. It must come from an unrelated physician or licensed psychologist who examined you, or from a judge or appropriate official.

Is a springing power of attorney durable?

One triggered by incapacity is durable by nature, since it's designed to work after incapacity. Washington's statute lists "shall become effective upon the disability of the principal" as one example of durability wording.

Does an immediate power of attorney mean my agent takes over?

No. Signing it doesn't take away your own authority. Your agent can act if needed, and must act within the authority you granted and in your interest.

Can I change a springing power of attorney to an immediate one?

While you have capacity, you can sign a new document. In Washington, a new power of attorney doesn't revoke an older one unless it says so. Ask whoever drafts it to address the old one.

Sources

• RCW 7.70.065: Persons authorized to consent for patients without capacity
• RCW 11.125.040: Power of attorney, termination at incapacity unless durable wording
• RCW 11.125.060: Power of attorney, validity and copies
• RCW 11.125.090: Power of attorney, when effective
• RCW 11.125.100: Power of attorney termination
• RCW 11.125.140: Agent duties and disclosures
• RCW 11.125.190: Acknowledged power of attorney, reliance and certification