A power of attorney is a type of estate document that is critical for ensuring that your financial affairs are cared for if there ever comes a time when you cannot take care of specific transactions because of scheduling conflicts, or if there ever comes a time when you do not have the mental capacity to care for them yourself. The way a power of attorney works is that you, as the principal, name another person known as your agent or "attorney-in-fact." Having an attorney-in-fact to take care of your financial matters is vitally important to make sure your finances do not fall into disarray or that you do not miss any opportunities. To learn more about the importance of executing a power of attorney, contact an experienced Bronx attorney-in-fact lawyer at the Law Offices of Stephen Bilkis & Associates who understands the advantages of a power of attorney and who can draft a power of attorney that meets your needs.Durable power of attorney
A durable power of attorney is a legal arrangement that gives the person you name as your attorney-in-fact the authority to act for you with respect to your financial affairs. As the principal, you can determine what power to delegate to your attorney-in-fact. For example, you can give him (or her) the authority to handle all of your financial affairs and transactions such as paying your bills, managing your investments, managing your real estate, managing your tax matters, purchasing insurance, resolving claims, borrowing money on your behalf, and applying for and collecting government benefits on your behalf. You can also be very specific, authorizing your attorney-in-fact conduct some financial transactions but not others.
There are certain matters that you cannot delegate to your attorney-in-fact. You cannot give your attorney-in-fact the authority to transfer your assets to him or herself or to write a will for you, or revoke your will. As an experienced Bronx attorney-in-fact lawyer will explain, only you can write your will. You can change your will at any time, as long as you are mentally competent.Executing a durable power of attorney
In order to have the legal capacity to execute a power of attorney, you must be at least 18-years-old and you must be mentally competent. In New York, in order to execute a legally enforceable durable power of attorney and appoint an attorney-in-fact certain formalities must be followed. You, as the principal, must sign the power of attorney document. The person you want to appoint as your attorney-in-fact must also sign the document.
It is important that your power of attorney is drafted by an experienced Bronx attorney-in-fact lawyer, as New York law requires that the power of attorney contain specific language in order for it to be effective.Ending a durable power of attorney
You as the principal can end or revoke your power of attorney at anytime as long as you are competent. When you revoke the power of attorney, the authority of your attorney-in-fact ends. In addition to you explicitly revoking the power of attorney, by law a power of attorney will also terminate if any of the following events occur:
- Unavailability of your attorney-in-fact. If your attorney-in-fact is unavailable to death or incapacity, the power of attorney will be terminated.
- Purpose accomplished. While durable powers of attorney are often executed so that the attorney-in-fact will be available in the event the principal becomes mentally incapacitated, they are also executed for other reasons. For example, if you need to sign a contract and you cannot attend the meeting, you can delegate the authority to sign the contract to your attorney-in-fact. Once that has been accomplished, you can specify that the power of attorney would be terminated.
- Court order. For a variety of reasons the court may step in and revoke a power of attorney.
- Execution of a new power of attorney. The execution of a new power of attorney automatically revokes prior powers of attorney.
It is important to understand that an attorney-in-fact is not the same as an executor. The power of the person you name as your attorney-in-fact in your durable power of attorney ends when you pass away. At that point, the person you name in your will as the executor of your estate will take over caring for your affairs and setting your estate. If you want your attorney-in-fact to also be your executor, you must indicate that in your will.Durable power of attorney vs. a health care proxy
A durable power of attorney and a health care proxy are both estate documents that allow you delegate authority to take care of your affairs if you do not have the mental capacity to communicate your wishes. In New York, a durable power of attorney is used to delegate authority to make financial decisions for you while a heath care proxy is used to delegate authority to make health care decisions for you. In other words, a health care proxy is essentially a durable power of attorney for health care. For example, you can give your heath care agent the authority to make decisions related to different types of treatment including medication, surgery, and dialysis. To learn more about the authority that you can delegate in a health care proxy, contact an experienced attorney-in-fact attorney in the Bronx.Without a power of attorney
In general, if you do not have a power of attorney, there will not be anyone available to transact business for you if you are not available. This could present a serious problem should you become mentally incapacitated. While your spouse or other family member might be able to take care of some of your financial affairs, without a durable power of attorney even a spouse may not be able to access accounts that are solely in your name. The result might be that bills will not get paid, fees and interests will accumulate, deadlines will be missed, and opportunities will be missed. In other words, your estate may suffer financially.
Ultimately, your loved ones may have to petition the Surrogate’s Court to request that a guardian be appointed to care for your finances. This may take some time and it will result in an added expense to your estate. In addition, the person who is appointed as your guardian may not be the person you want to look after your finances.Contact the Law Offices of Stephen Bilkis & Associates
If you would like to execute a power of attorney, it is important to consult with an experienced practitioner who understands the legal issues related to the appointment of an attorney-in-fact. The skilled attorney-in-fact attorneys serving the Bronx at the Law Offices of Stephen Bilkis & Associates have extensive experience representing clients in complex estate matters. We will help you execute a durable power of attorney, a health care proxy, and other estate documents that fit your overall planning goals. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Westchester County, Bronx, Suffolk County, Staten Island, Queens, Manhattan, Brooklyn, and Long Island.