Durable Power of Attorney vs. Springing Power of Attorney
Nov. 6, 2025
A power of attorney can protect your interests when making critical decisions about your finances, healthcare, or personal affairs. Choosing the right type of power of attorney is crucial because it determines when and how an agent can act on your behalf.
Durable and springing powers of attorney serve similar functions, but the conditions under which they operate differ, affecting control, authority, and timing.
At Rossi & DeMarco, PLLC, our Tonawanda, NY estate planning attorneys provide guidance for establishing powers of attorney that meet your needs while safeguarding your interests. If you’re considering a power of attorney, reaching out to us can help clarify which type suits your situation and protects your rights.
Powers of Attorney Explained
A power of attorney is a legal document that authorizes another person, known as an agent or attorney-in-fact, to act on your behalf. The agent can make decisions about finances, healthcare, or property depending on the authority granted in the document.
Powers of attorney are essential tools for planning, particularly when the principal might face medical or financial challenges that prevent independent decision-making.
Powers of attorney come in various forms, but durable and springing types are among the most commonly used. Both allow someone else to act on your behalf, yet they differ in activation, duration, and practical application. Knowing these differences is vital for anyone pursuing a power of attorney or preparing estate planning documents.
What Is a Durable Power of Attorney?
A durable power of attorney is designed to remain effective even if the principal becomes incapacitated. This means that the agent can continue to make decisions without interruption if the principal can’t handle their affairs due to illness, injury, or cognitive decline.
Durable powers of attorney are particularly valuable for:
Healthcare management: Authorizing medical decisions if you become unable to communicate your wishes.
Financial oversight: Managing bank accounts, paying bills, or handling investments during incapacitation.
Property transactions: Buying, selling, or managing property on your behalf when you can’t participate.
One of the main benefits of a durable power of attorney is the immediate and continuous authority it grants the agent, allowing for seamless decision-making. Unlike a springing power of attorney, it doesn’t require the principal to meet a future condition to activate.
What Is a Springing Power of Attorney?
A springing power of attorney only comes into effect upon the occurrence of a specific event, usually the principal’s incapacitation. Until that triggering event happens, the agent has no authority to act.
This type of power of attorney is often used by people who prefer to maintain control until they’re unable to make decisions. While this can provide peace of mind, it also comes with some potential challenges:
Verification requirements: The triggering event, often incapacity, must be documented, typically by a physician or through legal certification.
Delayed access: Decision-making may be delayed until the springing conditions are met, which can complicate urgent financial or healthcare matters.
Potential disputes: Family members or institutions may challenge whether the conditions have been satisfied, leading to disputes or delays.
Springing powers of attorney can be helpful for those who are cautious about granting authority prematurely but require careful drafting with an experienced power of attorney lawyer to avoid ambiguity.
Key Legal Differences Between Durable and Springing Powers of Attorney
The distinctions between durable and springing powers of attorney revolve around timing, authority, and practical considerations. Understanding these differences can help determine which document is best suited to your needs.
Durable powers of attorney become effective immediately upon signing and remain in effect if the principal becomes incapacitated. This allows an agent to act without delay, which is particularly important for managing finances or healthcare matters during periods of incapacity.
In contrast, a springing power of attorney only becomes effective upon the occurrence of a specific event, often medical incapacity, and this event must usually be verified. Because of this, decision-making may be delayed until the conditions are satisfied, which can complicate urgent situations.
The scope of authority also differs between the two. A durable power of attorney grants broad authority from the outset, enabling the agent to handle immediate decisions if the principal becomes incapacitated. A springing power, however, limits the agent’s authority until the triggering event occurs, potentially restricting the ability to respond quickly in critical moments.
From a risk and practicality standpoint, durable powers of attorney provide reliable and continuous coverage, though some principals may feel uneasy about granting such extensive authority in advance. Springing powers of attorney offer more controlled activation, but the delay in granting authority can leave gaps in decision-making when timely action is required.
These distinctions are often decisive when considering a power of attorney or when adjustments may be needed to protect the principal’s interests.
Drafting Considerations for Both Types
When creating a power of attorney, precise language is critical to avoid disputes or unintended limitations. Consider these points when drafting:
Define the agent’s powers clearly: Specify which decisions the agent can make, from finances to healthcare.
Include activation conditions: For springing powers, explicitly state the event that triggers authority and how it will be verified.
Specify duration and revocation procedures: Outline how long the authority lasts and under what circumstances the principal can revoke it.
Add safeguards: Consider limits on large financial transactions or healthcare decisions if desired.
Careful drafting can prevent confusion, disputes, or misuse, particularly when pursuing a power of attorney, and it also helps affirm that the document functions smoothly if it ever needs to be enforced.
Using Powers of Attorney in Financial Matters
Both durable and springing powers of attorney play key roles in financial management. Agents can handle tasks such as paying bills, managing investments, and maintaining property.
Banking and accounts: Agents can deposit or withdraw funds, manage checking and savings accounts, and handle online banking.
Bill payments and taxes: Paying recurring bills and filing taxes on behalf of the principal attests to continuity.
Real estate management: Buying, selling, or renting property can be delegated to an agent with authority.
Financial institutions often require clear verification of the agent’s authority, particularly with springing powers, to avoid delays in urgent transactions.
Powers of Attorney in Healthcare Decisions
Healthcare powers of attorney allow an agent to make medical decisions when the principal can’t communicate their wishes. This may include consenting to procedures, choosing providers, or arranging long-term care.
Durable: Makes sure immediate authority if a health crisis arises, allowing for timely medical decisions.
Springing: Requires proof of incapacity, which can delay critical decisions or complicate emergency care.
Agents should be familiar with the principal’s healthcare preferences and legally documented instructions, including living wills or advance directives, to act in alignment with their wishes.
Revocation and Termination
Understanding how to revoke or terminate a power of attorney is just as important as creating one, since circumstances or preferences may change over time. Both durable and springing powers of attorney can be revoked or terminated, but the procedures differ slightly.
Durable: Revocation is straightforward and can be done while the principal is competent by providing written notice to the agent and relevant institutions.
Springing: The principal can revoke authority before activation, but once the triggering event occurs, revocation may require legal steps or medical verification.
Revocation and termination procedures should be included in the power of attorney document to prevent confusion and potential disputes.
Common Mistakes to Avoid
Creating a power of attorney requires careful attention to detail, and overlooking key elements can weaken its effectiveness. Several common mistakes can undermine the success of a power of attorney.
Vague language: Ambiguous instructions can lead to legal challenges or delays.
Lack of witnesses or notarization: Most states, including New York, require notarized signatures or witnesses for validity.
Failing to update: Life changes like divorce, death, or relocation may necessitate revising powers of attorney.
Overlooking activation conditions: For springing powers, unclear triggering events can cause conflicts or delayed authority.
Avoiding these errors verifies the power of attorney functions as intended, protects the principal’s interests, and reduces the likelihood of costly disputes that could arise between agents, family members, or third parties.
When to Choose Durable Over Springing
Choosing a durable power of attorney is often preferred when immediate and continuous authority is essential. Situations where this may be appropriate include:
Chronic illnesses: Conditions that may gradually impair decision-making, such as Alzheimer’s disease.
Frequent travel: When the principal will be unavailable for extended periods.
Complicated financial obligations: Securing uninterrupted access to accounts, investments, or property management.
Durable powers of attorney provide certainty and continuity for both financial and healthcare matters, giving the principal peace of mind that decisions can be made promptly and effectively when needed.
When to Choose Springing Over Durable
Springing powers of attorney may be appropriate for individuals who want to retain control over their affairs until they become incapacitated. This approach can be useful for healthy principals with long-term planning goals who prefer that authority only be activated when necessary.
It’s also often considered in estate planning, as limiting authority until specific events occur can prevent premature decision-making and preserve the principal’s intentions. Additionally, springing powers of attorney can help manage family dynamics by providing controlled activation, which may reduce potential conflicts among multiple parties.
However, careful drafting and clear verification procedures are essential to avoid disputes or delays in activating the agent’s authority.
The Importance of Legal Guidance
Establishing a power of attorney can be a critical step in protecting your financial, healthcare, and personal interests, and having professional guidance can make the process smoother and more secure. Working with a lawyer can provide clarity and protection when creating a power of attorney. At Rossi & DeMarco, PLLC, we:
Review your objectives and risks.
Draft durable or springing powers of attorney tailored to your needs.
Advise on activation, authority, and revocation procedures.
Represent clients in disputes arising from power of attorney.
Contact Our Estate Law Firm Today
At Rossi & DeMarco, PLLC, we help clients in Tonawanda, New York, Amherst, Wheatfield, and throughout Erie County and Niagara County establish durable or springing powers of attorney that protect their interests and provide peace of mind. If you’re considering a power of attorney or need guidance on the right document for your situation, reach out to our team of attorneys today for knowledgeable legal support.