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Last Updated on October 31, 2022 by Estate Planning FAQ

Short Answer: Becomes Effective Upon Disability or Incapacity

When deciding what type of power of attorney to have prepared, the first question is whether it should be durable or not. It has been the author’s experience that a power of attorney should be prepared as being durable versus not. A more thorough explanation of a durable power of attorney is accessible here. Suffice it to say for purposes of this article that a durable power of attorney is one the continues to be effective after the disability or incapacity of the principal (“the person that granted the power of attorney”).


As is commonly know, a power of attorney is a document that is prepared whereby an individual gives to another person (“Agent”) the authority to act for them in the event they cannot. Typically a healthcare power of attorney is prepared and a separate financial power of attorney is prepared. The documents can be combined but a typically separate documents.

Effective Date of Power of Attorney

A power of attorney, whether durable or not (and regardless of whether it is a financial power of attorney or a healthcare power of attorney) takes effect at one of two times. The first way a power of attorney can be effective is immediately. A power of attorney that is effective immediately is just as it says. Once it has been signed in conformance of the laws of that particular state, it becomes effective to allow the agent to act their behalf. (it is important at this point that the reader confirm the requirements of their particular state as some states require the agent to accept and acknowledge that they will act as power of attorney. Other states like Kansas, do not.)

The second method that a power of attorney takes effect is a upon disability or incapacity. These terms may be different depending on the jurisdiction but basically means at such a point in time as the principal is no longer able to make decisions. At that point in time, typically once certified by a physician or other health professional, the power of attorney then has authority to act on behalf of the principal. This is a springing power of attorney. It springs into being upon a determination of the disability or incapacity of the principal.

Determining Disability or Incapacity

Determining whether the principal still has capacity or is able to make decisions for themselves can be defined within the document or absent the description by local law. It is common for a springing power of attorney, to take effect after either one or two physicians have examined the principal and they have provided a written statement or opinion confirming this disability for incapacitated.

After the power of attorney has sprung into place based on the determination as set forth in the document, it continues to remain in place until such point in time as a court determines that the principal is no longer disabled or incapacitated or a medical professional has made such determination. It is very common that once a springing power of attorney becomes effective that they are not revoked or terminated by a restoration to capacity.

Conclusion and Recommendation

As mentioned above, due to the nature as to when the power of attorney takes effect, a power of attorney must be durable if it is going to be a springing power of attorney. The reason for this is that a power of attorney is revoked upon disability or incapacity if it lacks the terms and title of “durable”

Second, due to powers of attorney being unique to each state, it is strongly recommended that the reader consult with an attorney or other professional in their state to determine how a springing power of attorney takes effect. For example, it is the author’s understanding that a Springing Power of Attorney is not allowed in the state of Florida. Also, a professional can also provide whether it is best to have a power of attorney effective immediately or upon disability or incapacity.