Bronx Powers of Attorney

A power of attorney is a critical estate planning tool to have in the event that you are unable to care for your finances on your own. With a power of attorney you can give another person, known as your agent or attorney-in-fact, broad authority to act on your behalf with respect to all financial matters. Alternatively, a power of attorney can be quite limited, giving the attorney-in-fact authority to engage in only specific financial transactions. Because a power of attorney is a powerful legal document that can significantly impact your financial health, it is important for you to contact an experienced Bronx Powers of Attorney Lawyer to assist you in drafting and executing your powers of attorney.

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Types of Powers of Attorney

Depending on your long-term goals as well as your immediate needs, there are different types of powers of attorney. Generally speaking, a power of attorney can be general, limited, durable or springing.

General Power of Attorney. With a general power of attorney you give your attorney-in-fact broad authority to act on your behalf. If the general power of attorney is for financial matters, the authority could include handling banking and investments, settling claims, operating a small business, and employing professionals. You may need to execute a general power of attorney if you plan to be out of the country and need another person to handle pressing financial matters. Furthermore, a general power of attorney might also be appropriate in the event you become physically or mentally incapable of managing your affairs.

Limited Power of Attorney. In contrast, with a limited power of attorney, also referred to as a special power of attorney, you give your attorney-in-fact the authority to act for you for only a very limited, specific purpose. You can specify exactly what powers your attorney-in-fact may exercise. You should consider a limited power of attorney if you are unable to complete a transaction or execute a document because of health reasons or other commitments. For example, if you are unable to attend a real estate closing or handle a business transaction, you could give someone you trust the authority to act in your stead by executing a power of attorney in advance.

Durable Power of Attorney. The main difference between a power of attorney that is durable and one that is not durable is that with a durable power of attorney the person whom you name as your attorney-in-fact retains authority even if you become incapacitated. If a power of attorney is not durable, then it terminates when you become incapacitated. This is a significant feature. If you do not have a durable power of attorney in place your care and your finances could fall into a tenuous situation. The court may step in an name a conservator to make decisions about your health care and finances. This is likely not the result that you would prefer. Under New York law, a power of attorney is automatically durable unless you specifically state that is it not.

Springing Power of Attorney. A springing power of attorney, also called a conditional power of attorney, is a special type of durable power of attorney that only becomes active in certain circumstances. The circumstance or "springing" event is commonly when you become disabled or mentally incompetent. However, you can specify what the springing event would be.

Executing a Power of Attorney

Under New York law there are certain steps that you must take in order for a power of attorney to be properly executed. The document must be legible. Both you and the person you are nominating to be your attorney-in-fact must sign and date the document. NY GOB Law § 5-1501B.

Terminating or Changing a Power of Attorney

Depending on the type of power of attorney and its purpose, a power of attorney terminates if you pass away, if you become incapacitated, if you revoke it, on the termination date mentioned in the document, the purpose of the power of attorney is accomplished, or your attorney-in-fact no longer is willing or able to fulfill his or her duties as your attorney-in-fact.

If you would like the person whom you appoint as your attorney-in-fact to remain a fiduciary responsible for settling your estate after you pass away, then you should name that person the executor of your estate in your will.

As long as you are mentally competent, you can change your power of attorney at any time. In fact, it is a good idea for you to periodically revisit your power of attorney and make sure it still meets your needs. For example, as time passes you may determine that you want to name a different person as your attorney-in-fact.

Consequence of Not Having a Power of Attorney

The consequence of failing to execute a power of attorney can be significant, particularly if you become mentally incapacitated. If you do not have a durable or springing power of attorney naming an attorney-in-fact and you become incapacitated, then no one will be able to make sure that your finances are taken care of. The result could be that your estate falls into disarray and assets could be lost. Another consequence of not having a durable power of attorney for finances is that the court may end up getting involved and may appoint a conservator to handle your finances.

Power of Attorney for Health Care

In New York a power of attorney for health care is called a health care proxy. With a health care proxy you give your agent the authority to make health care decisions for you in the event that your physician determines that you are mentally incapacitated and unable to make your own medical decisions. Medical and care decisions that you can give your agent the power to address for you include:

  • artificial respiration
  • artificial nutrition and hydration
  • CPR
  • antipsychotic medication
  • electric shock therapy
  • antibiotics
  • surgical procedures
  • dialysis
  • organ transplantation
  • blood transfusions
  • medication

Before your agent can exercise power to cease or refuse a life-sustaining treatment such as CPR or nutrition and hydration, a second physician would have to agree that you are mentally incapacitated and unable to make decisions for yourself.

As you plan for your future health care and finances, in addition to a durable power of attorney for finances and a health are proxy, you may need additional estate planning tools such as a last will and testament, a living will, and a trust. Because these documents are complicated and can have a significant legal and financial impact on your life, it is wise to not attempt to draft and execute a power of attorney, or any estate planning document alone. Each document has specific requirements for proper execution. Failure to properly draft and execute any of these documents could render the document invalid. As a result your wishes may not be followed, and there may be potentially negative ramifications on your finances and health. To learn more about the advantages of a power of attorney as well as other estate planning tools, contact Stephen Bilkis and Associates. We will help you develop an overall estate plan that reflects your individual goals. 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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