Bronx Power of Attorney

A power of attorney is an estate planning document that allows you to delegate legal authority to another person to make financial, real estate and other legal decisions for you. When you create a power of attorney, you are referred to as the principal and the person to whom you give your power of attorney is referred to as your attorney-in-fact or agent. A power of attorney is commonly reserved for occasions when the principal is incapacitated and cannot act for him or herself. Because of this, it is considered an important estate planning tool, as you can plan in advance for the possibility that at some point you may become incapacitated and need someone to take care of your finances and legal matters for you. However, a power of attorney may also be used for occasions when the principal is temporarily unavailable. For example, if you must be out of town when certain transactions must be made or legal documents signed, then your attorney-in-fact can complete those transactions or sign the legal documents for you. Because of the impact that a power of attorney could have on your finances as well as other aspects of your life, before executing a power of attorney you should contact a Bronx Power of Attorney Lawyer who can explain to you the implications of granting someone your power of attorney and who will make sure that your power of attorney is properly drafted and executed.

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What is a power of attorney?

A power of attorney is a document with which you give legal authority to another person to act for you. You are the principal and the person to whom you grant authority is referred to as your attorney-in-fact or your agent. If you execute a durable power of attorney it will remain valid even after you become mentally incapacitated. In other words, your attorney-in-fact will have the authority to manage your estate for you without having to go to court. On the other hand, a nondurable power of attorney becomes invalid at the point you become mentally incapacitated.

How do I select who should be my attorney-in-fact?

You can select anyone you want as long as that person is at least 18 years old. Many people select their spouse, significant other, adult child, or sibling. When making your selection, questions to consider include:

  • Is the person trustworthy?
  • It the person responsible?
  • Does the person have the time?
  • Does the person live close enough to carry out the responsibilities?
  • Does the person have a history of making financially sound decisions?

In addition to naming a primary attorney-in-fact, you should also consider designating an alternate attorney-in-fact in case your primary is unable to serve. If you have not appointed an attorney-in-fact of it the person you appointed is unable to serve, the court will have to intervene and appoint a conservator over your estate in the event you became incapacitated.

What type of authority can I grant my attorney-in-fact?

You can give your attorney-in-fact a broad range of power in your power of attorney, or very narrow authority. Examples of the types of powers you can include the legal power to:

  • Manage your expenses and pay your bills
  • Buy or sell real estate
  • Manage your real estate
  • Manage your bank account, including making deposits, withdrawals, opening an account or closing and account
  • Access your safety deposit box
  • Collect government benefits on your behalf such as Social Security, Medicare and Medicaid
  • Invest your money
  • Make legal claims on your behalf and defend legal claims against you
  • File and pay income and property taxes, and resolve tax audits
  • Make gifts on your behalf to members of your family or donations to specified charities

Some things that you cannot authorize your attorney-in-fact to do even if you want to include:

  • Make, change or revoke your last will and testament
  • Make decisions regarding your health care.
  • Delegate his or her authority as your attorney-in-fact to another person

Your attorney-in-fact is also not permitted to your assets for his or her personal benefit unless you explicit give your attorney-in-fact permission to do so.

Can I delegate authority to an attorney-in-fact to make health care decisions for me?

You cannot use a power of attorney to empower your attorney-in-fact to make health care decisions. In New York State you can only do so by appointing health care agent using a health care proxy.

Once I sign a power of attorney, may I continue to make decisions for myself?

If you are not mentally incapacitated you can continue to make financial decisions for yourself even while the power of attorney is active. Your attorney-in-fact can perform activities for you as you direct him or her to, while you can take care of other financial or legal activities yourself.

What are my attorney-in-fact's obligations to me?

Your attorney-in-fact is a fiduciary with respect to you. This means that your attorney-in-fact is obligated to act in your best interests and to avoid acting selfishly. Your attorney-in-fact must safeguard your property and keep it separate from his or her own property. In other words it would be impermissible for your fiduciary to keep one bank in which your assets and your attorney-in-fact's assets are commingled. Your attorney-in-fact must keep detailed records of what he or she does on your behalf. He or she must periodically give you or a third-party accountings of transactions made on your behalf.

How do revoke a power of attorney?

You can revoke a power of attorney any time you choose as long as you are mentally competent. In order to revoke a power of attorney you must give your attorney-in-fact notice. It is also a good idea to let your bank and anyone else whom your attorney-in-fact had contact with on your behalf know in writing that you revoked the power of attorney.

In addition, a power of attorney will automatically terminate open the occurrence of any of the following events:

  • If your attorney-in-fact is unable or unwilling to serve and your successor attorney-in-fact is also unable or unwilling to serve.
  • If you attorney-in-fact is your spouse and divorce proceedings are initiated.
  • Your death.
What can be done if my attorney-in-fact breaches his or her fiduciary duty?

If you suspect that your attorney-in-fact has acting inappropriately, you can revoke your power of attorney at any time. In fact, you can revoke it for any reason. To do so you would need to let your attorney-in-fact know in writing. You should also inform your financial institutions that the power or attorney has been revoked.

If you are mentally incapacitated and a third party suspects that your attorney-in-fact has breached a fiduciary duty, that person can go to law enforcement or petition the court to have your attorney-in-fact removed.

While a power of attorney is not a complicated document, it is a very powerful document. If it is not drafted correctly, or if you name the wrong person as your attorney-in-fact, the effect on your finances could be devastating. Before executing a power of attorney you should consult with an experienced practitioner who will explain to you what powers are appropriate to delegate, advise you on how to choose an attorney-in-fact, and ensure that the power of attorney meets all legal requirements. Contact Stephen Bilkis and Associates. We will help you execute a power of attorney as well as help you with other important estate planning documents such as a will, trust and health care proxy. Contact us at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your estate plan.

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