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Westchester County Attorney-in-Fact

Your attorney-in-fact is the person you authorize in your power of attorney to act on your behalf. In other words, your attorney-in-fact is your agent. Generally, an attorney-in-fact is authorized to act in the event you are unable to do so. The attorney-in-fact's power and responsibilities depend on the specific powers that you authorize in the power of attorney document. You can grant your attorney-in-fact very specific powers to perform certain duties, or you can grant very broad powers. For example, with a power of attorney you can grant your attorney-in-fact general power to handle your financial matters or a limited to power to handle a specific type of transaction. Because of the potential serious financial and personal ramifications of making someone your attorney-in-fact, it would be wise to consult a Westchester County Attorney-in-Fact Lawyer who can help you determine which type of power of attorney is appropriate for your circumstances and make sure that it is properly drafted and executed.

What are the Different Types of Powers of Attorney?

There are 4 main types of powers of attorney: limited, general, durable and springing.

  • Limited Power of Attorney. With a limited power of attorney you give your attorney-in-fact the authority to act for you for only a very limited, specific purpose. For instance, if legal papers need to be executed on a certain day, but you will be out of the country on that day, you can give someone the authority to execute those papers for you. Once the papers are executed, the power of attorney will end.
  • General Power of Attorney. In contrast to a limited power of attorney a general power of attorney gives your attorney-in-fact comprehensive authority to act for you. For example, with a power of attorney for financial matters, you can grant someone the authority to: buy or sell real estate, buy or sell other types of property, buy, sell and manage securities, manage your bank accounts, operate your business, handle claims and litigation, manage your benefits such as your retirement or military benefits, purchase insurance policies for you, and handle tax matters. N.Y. GOB. Law § 5-1501 et seq. A general power of attorney is terminated when you rescind it, when you die or when you become incapacitated.
  • Durable Power of Attorney. A durable power of attorney can be either general or limited. However, a durable power of attorney remains in effect when you become incapacitated. For example, if you are injured in a terrible car accident that leaves you in a coma, a durable power of attorney will give you attorney-in-fact the authority to take care of your finances and personal matters. Otherwise, a court will appoint the person who will act as your conservator. Your attorney-in-fact will retain power under your durable power of attorney until your death unless you rescind it while you are not incapacitated.
  • Springing Power of Attorney. A springing power of attorney is similar to a durable power of attorney in that it is effective when you are incapacitated. However, the difference is that a springing power of attorney only becomes effective when you become incapacitated. Your springing power of attorney should be very specific in describing the standard for you being considered incapacitated such that that power of attorney is triggered.
How do I Appoint an Attorney-in-Fact?

In order to appoint an attorney-in-fact you must execute a power of attorney. In New York there are certain formalities that must be followed in order for the power of attorney to be valid. For example it must be legible. In addition, you must sign, date it and your signature must be acknowledged. It must also be signed and dated by the person you are appointing as your attorney-in-fact. NY GOB LAW § 5-1501B. A power of attorney typically becomes effective on the date that the agent's signature is acknowledged, unless it is springing. In that case it only becomes effective in event you become incapacitated or some other contingency occurs.

When Does a Power of Attorney End?

Depending on the type of power of attorney and its purpose, it terminates upon the happening of at least one of the following events:

  • You die
  • You become incapacitated
  • You rescind the power of attorney
  • The date stated in the power of attorney
  • The purpose of the power of attorney is accomplished
  • The person named in your power of attorney is no longer willing or able to act as your attorney-in-fact
What Happens if You do not have an Attorney-in-Fact?

The consequence of not appointing an attorney-in-fact can be significant. If you are needed to execute a document or perform some other legal obligation, then there may be legal or financial consequences if you are not available and no one has the legal authority to act for you.

If you do not have a durable or springing power of attorney naming an attorney-in-fact or any other advanced health care directive and you become incapacitated, then your wishes may be unclear or unknown. The court may have to step in and appoint a conservator to make decisions for you. In general, a court will seek to appoint a family member to act as your conservator or guardian. However, if there is no appropriate family member willing or able to serve as your conservator or guardian the court may appoint a stranger. The conservator may end up making decisions on your behalf that you would not have made. The conservator will remain in place as long as the court determines that he or she is needed. If your medical condition improves enough so that you are able to resume taking care of your affairs, the court will end the conservatorship. NY MHY LAW § 81.36. Otherwise, the conservatorships remain in place until your death.

What Else Should be Part of My Estate Plan?

While a power of attorney naming an attorney-in-fact is an important part of your estate plan, it should not be the only component. A power of attorney only addresses certain personal and financial issues, but is not comprehensive enough to address all issues regarding your estate. You should also consider protecting your assets and financial health while you are living and planning for how your estate should be handled upon your death. To do this, you will need other essential documents such as a last will and testament and a trust.

A will allows you to provide for your loved ones after you pass away. You can leave gifts of cash, stocks, bonds, real property, jewelry, and collectibles to those you care about. You can also indicate in your will who will serve as the guardian for minor children who survive you. A trust is in some ways similar to a will in that it can also be used to leave your loved ones property after you pass away. However, trusts allow you to give gifts during your lifetime. At the same time, if you chose to you can retain control over the assets you give away. Depending on the type of trust, a trust can offer financial benefits such as tax savings and asset protection.

The components that you should consider for your comprehensive estate plan will depend on the size of your estate as well as your personal and financial goals. A prudent estate plan and properly drafted and executed estate plan documents will ensure that you meet your personal and financial goals for you and your family.

As you consider how to plan for the possibility that at some point you may become incapacitated due to an illness or accident or that you might be temporarily unavailable for some other reason, it is important to understand the legal consequences of appointing an attorney-in-fact. Not only must your power of attorney be clear and properly executed, you must also make sure that you select the right person to serve as your attorney-in-fact. To learn more about the advantages of a durable power of attorney and how to select an attorney-in-fact contact Stephen Bilkis & Associates, PLLC. We will not only help you with your questions related to powers of attorney, but we will also work closely with you to make sure that you have a comprehensive estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.

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