Last week, I received a frantic phone call from the daughter of a prospective client whose mother was in rehab after being discharged from the hospital.  The mother was no longer capable of managing her own affairs.  The daughter was in the process of dealing with her mother’s insurance and preparing to pay her mother’s medical bills.  When the daughter visited the mother’s bank to transfer funds to pay for the impending medical bills, the bank refused because the power of attorney was not immediate and durable.  Unfortunately, this is a common situation we see in our practice.  The solution to this issue is to make sure you and your parent or loved one has a properly drafted and executed Immediate Durable Power of Attorney.

There are basically two types of Powers of Attorney: Durable and Springing.  A Durable Power of Attorney is effective immediately upon execution and remains effective in the case of subsequent incapacity; whereas, a Springing Power of Attorney is not effective until a triggering event occurs, thereby “springing” into action.  Typically the triggering events that make a Springing Power of Attorney effective are: (1) incapacity evidenced by at least one physician certifying to the incapacity of the principal, (2) court determination, or (3) Certification of Authorization by Principal – The principal signs a document making the Power of Attorney effective.

In our practice, 99% of the Powers of Attorney we draft are Durable and Immediate.  We advise clients to have a Durable Power of Attorney rather than a Springing Power of Attorney because the Agent named in the Power of Attorney cannot afford to endure time consuming and unnecessary hurdles when dealing with financial, insurance and administrative matters in a time of crisis.  When you need to get the principal’s affairs handled in a time of crisis, the last thing you want to do is go to a doctor or Court to certify the principal’s incapacity.

The execution of a proper Durable Power of Attorney is an elementary estate planning tool. Without one, the family is unable to act expeditiously in a time of crisis.

If you have any questions, concerns or interests please call us at 973-228-1795 or email us at