What is a Durable Power of Attorney?

If you are ever incapacitated, an individual or institution entrusted with your durable power of attorney can make important decisions on your behalf. During the time when you are either mentally or physically incapable of making decisions for yourself, sometimes there still may be important decisions to be made. Maybe those decisions are in relation to your finances or real estate holdings, or perhaps those decisions are about the medical care that you are to receive while incapacitated. Whatever the case may be, sometimes these choices simply cannot wait.

Without a legally recognized durable power of attorney agent acting on your behalf, the court may appoint someone to make these decisions for you. Or maybe worse, your family members may fight among themselves about how best to interpret your wishes during a difficult time.

In the state of Colorado, every POA is considered durable unless stated otherwise.

What is a Springing Power of Attorney?

While a durable power of attorney is in effect from any set start date and continues while you are incapacitated, a springing power of attorney does not go into effect until a certain condition is met. For example, while the conditions and powers of a durable POA agent may not change in the event of your incapacitation, your springing POA agent may not obtain any power until you are incapacitated.

While this may seem like a useful distinction for limiting your agent’s powers, many estate planning lawyers recommend against springing powers of attorney because sometimes the definitions of ‘incapacitated’ can be difficult to satisfy for all.