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Written by Jonathan J. David Jonathan J. David

Dear Jonathan: I am an elderly gentleman who is not married and has no children. Because I have become increasingly aware of my own mortality, I have decided to engage in estate planning for the first time in my life.

Interestingly, I am more concerned with those documents whose purpose is to protect me during my lifetime, e.g., financial and healthcare durable powers of attorney, than I am with those documents that direct where my estate goes when I die, e.g., a will and trust.

More specifically, I understand the importance of having financial and healthcare durable powers of attorney, but I am not the most trusting person in the world and admittedly a bit of a control freak.

Consequently, I don’t want anyone acting for me unless I no longer have the mental faculties to act for myself. Is it possible that these documents can be drafted in such a way?

Jonathan says: Yes. The healthcare durable power of attorney, by its nature, is not effective until you are no longer able to act for yourself, i.e., you are legally incapacitated. Therefore, the person you name as your patient advocate cannot act for you until you are unable to act for yourself regarding your healthcare decision-making.

A financial durable power of attorney comes in two varieties, a “non-springing” and a “springing” durable power of attorney.

A non-springing durable power of attorney becomes effective immediately upon execution, which means your agent can act for you even if you still have legal capacity.

A springing durable power of attorney only becomes effective or springs into action when you are no longer able to act for yourself. With this type of durable power of attorney your agent will be prohibited from acting on your behalf until there has been a determination made that you are legally incapacitated.

Although this type of durable power of attorney addresses your specific concern about not allowing anyone to act for you unless you can no longer act for yourself, it is not without its disadvantages.

Those disadvantages include:

1. It is a much less flexible instrument than the non-springing durable power of attorney because it can only be used after you become incapacitated.

Consequently, so long as you have legal capacity, you won’t have the option of having your agent do something for you because you are either unavailable or you simply prefer that your agent act on your behalf.

Because your agent can only act upon your becoming legally incapacitated, your agent will be restricted from acting until that time.

2. Before your agent is able to act for you under this type of durable power of attorney, he or she will need to prove to third parties that you are legally incapacitated.

Typical language will require your agent to obtain written statements or certifications from two licensed physicians, one of whom is your personal physician, that certify you are unable to act for yourself.

Those statements or certifications, however, can sometimes be difficult to obtain or at least to obtain quickly, which will be a problem if something needs to be done for you right away.

3. Finally, even after your agent has secured the required determination of your incapacity, he or she could run into difficulty having third parties accept that determination.

I recommend that you meet with an estate planning attorney to initiate the estate planning process, at which time you can explain your concerns regarding having the financial durable power of attorney be effective while you still have your mental faculties.

That attorney can then explain in more detail the pros and cons of preparing both the “springing” and “non-springing” versions of your financial durable power of attorney.

This will allow you to make an educated decision regarding what type of financial durable power of attorney you want to implement. Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., 1700 E. Beltline N.E., Grand Rapids, MI 49525.