Brooklyn Power of Attorney Lawyer

While it is common for people to create a will and make other plans for what should happen to their property once they pass away, it is less common for people to plan for how their estate would be managed if they are unable to manage it for themselves. Part of estate planning is protecting your property while you are still living and planning for later in life issues. For example, imagine if you are 35 years old and suffer a cardiac event that leaves you with severe brain damage. Or imagine if you are 20 years old, you suffer a near-drowning incident that leaves you in a vegetative state. Or, imagine you are 85 years old and you suffer from dementia, leaving you unable to competently take care of your financial or personal affairs. Although it may be painful to think that any of these could happen to you, it is wise to make plans "just in case." A power of attorney is one of the best ways to ensure that your financial, personal, and health care affairs are cared for according to your wishes in the event that you cannot handle them for yourself. With a power of attorney you give another person the legal authority to act for you. That person would be your agent or attorney-in-fact. A power of attorney can take effect immediately or can be designed so that it takes effect only upon the occurrence of a particular event such as you becoming incapacitated. In addition, a power of attorney can be either very limited or it can grant broad powers. Before executing a power of attorney, consult a Brooklyn Power of Attorney Lawyer who can help you determine who you should name as your agent and which powers you should grant that agent.

Types of Powers of Attorney

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

  • General Power of Attorney. With a general power of attorney you grant your agent broad authority to act for you. For example, if you give another person the authority to handle all over your financial affairs such as paying your bills, managing your real estate, managing your banking and buying and selling securities for you, then you would execute a general power of attorney.
  • Limited Power of Attorney. In contrast, with a limited power of attorney you give your agent the authority to act for you for only a very limited, specific purpose. For instance, if certain legal documents must be executed on a particular date but you cannot be there to sign the documents on that day because you will be out of town or because you have another commitment, you can give another person the authority to sign the documents for you. The power of attorney document will detail the limited purpose of the power of attorney. It will also indicate when the authority ends.
  • Durable Power of Attorney. A power of attorney can be durable. This means that it will remain in effect even if you become incapacitated. For example, if you are injured in an accident and end up in a coma, a durable power of attorney will give your agent the authority to tend to your finances or make decisions regarding your health care for you. Otherwise, a court will appoint a conservator for you. Under your durable power of attorney, your attorney-in-fact will retain power until your death unless you revoke it while you are not incapacitated. In New York powers of attorney are durable unless the power of attorney states otherwise.
  • Springing Power of Attorney. A power of attorney is termed "springing" if it goes into effect upon the happening of a particular event that is mentioned in the power of attorney document. For example, the power of attorney could become effective when you become incapacitated. Or, the power of attorney could become effective when you leave to travel out of the country.
Consequence of not having a power of attorney

One important reason to have a power of attorney, particularly a durable power of attorney, is to avoid a conservatorship. If you do not have a durable power of attorney and you become incapacitated, no one will have the authority to make decisions over all of your financial affairs. Your family may have to ask the court to step in and name someone to manage your financial affairs. This person would be your conservator or your adult guardian.

During the conservatorship proceedings your family will have to present evidence to the court that you can no longer take care of your own affairs. If the court agrees, someone, probably a family member will be appointed as your conservator. However, if the court does not find family member who is fit, then the court may appoint a public conservator to manage your affairs.

While a conservatorship proceeding can be embarrassing, as details about your personal activities as well as your medical records will become a matter of public records. In addition, conservatorships are quite expensive. Not only will there be fees associated with the conservatorship proceedings, public conservator are entitled to a fee. This money will be paid for from your estate.

The conservator will remain in place as long as the court determines that a conservator 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 conservatorship will remain in place until your death. It is important to note that naming an agent in your power of attorney is quite different from naming an executor in your will. Your agent's duties typically end upon your death while your executor's duties begin upon your death.

Executing a Power of Attorney

New York has specific laws covering what is required to make a power of attorney. In order to properly execute a durable power of attorney, the document must be written and executed as required by New York General Obligations Law:

  • The document must be legible.
  • You as the principal must sign end date it.
  • The person who are naming as your agent must also sign it.
  • The power of attorney must also contain certain statutory cautionary language

NY GOB Law § 5-1501B

Terminating 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 (unless it is durable), if you revoke it, on the termination date mentioned in the document, the purpose of the power of attorney is accomplished, or your agent no longer is willing or able to fulfill his or her duties as your agent.

Other Vital Documents

While a power of attorney is a key part of your estate plan, it should not be the only component. A power of attorney only addresses certain personal and financial issues related to specific eventualities. A power of attorney is not comprehensive enough to address all personal and financial factors related to your estate. You will also a need a power of attorney for your health care. This is called a health care proxy. With a health care proxy your health care agent will be empowered to make decisions regarding your treatment and other health care issues in the event that your doctor determines that you are unable to do so for yourself.

In addition, you should also consider planning for how your estate should be disposed of upon your death. To do this, you will need other documents such as a will 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, trusts also offer financial benefits such as tax savings and asset protection.

A power of attorney is an important part of a comprehensive estate plan that many people overlook. It helps make sure that your financial affairs are taking care of by someone you trust in the event you are not able to take care of them yourself. While a power of attorney is an important document, it is not the only document that you will need in order to have a complete estate plan. It is also important to have a last will and testament to set forth your final wishes, a trust to leave property to your beneficiaries and avoid probate, and an asset protection plan. To learn more about the advantages of a power of attorney as well as other estate planning tools, contact Stephen Bilkis & Associates, PLLC. 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. We serve individuals throughout the following locations:

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