Manhattan Power of Attorney

A power of attorney is a powerful estate planning document. With a power of attorney you give another person, referred to as your "attorney-in-fact," power to act for you with respect to your finances, property or other legal matters. A power of attorney can take effect immediately upon being executed, or can be designed so that it takes effect only upon the occurrence of a particular event such as you becoming mentally incapacitated. In addition, a power of attorney can also be either very limited and specific, or general. Before drafting your power of attorney, consult a Manhattan Power of Attorney Lawyer who can help you execute a power of attorney that is legal sufficient and that is appropriate for your circumstances.

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What is a power of attorney?

A power of attorney is a legal document that is used to entrust legal authority to another person. You as the maker of the power of attorney are referred to as the principal. The person to whom you delegate power is referred to as your agent or attorney-in-fact. You can give your attorney-in-fact authority to make financial, property and other legal decisions for you. You can give your attorney-in-fact broad legal authority or very limited authority. While there are many reasons to execute a power of attorney, powers of attorney are frequently used to help in the event that the principal becomes ill or incapacitated, or in the event that the principal cannot be present to execute legal documents.

Are there different types of powers of attorney?

There are 3 general types of powers of attorney: durable, nondurable and springing.

Durable power of attorney. With a durable power of attorney you give your attorney-in-fact the power to act for you even after you are mentally incapacitated. Under New York law a power of attorney is durable unless you state in the power of attorney that it is not durable. A durable power of attorney is effective until you revoke it, or upon your death.

Nondurable power of attorney. A nondurable power of attorney is only effective while you are mentally competent. By law it immediately terminates should you become mentally incapacitated. As with all powers of attorney, a nondurable power of attorney also terminates upon your death. If you would like your power of attorney to be nondurable, you would have to specifically state that in the power of attorney.

Springing power of attorney. A springing power of attorney becomes effective in the future upon the happening of an event specified in the power of attorney. That event could be the illness or incapacity of the principal, or it could be some other type of event.

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

You can give your attorney-in-fact a broad range of power in a power of attorney including the legal power to:

  • Buy or sell real estate
  • Manage your real estate
  • Manage your bank account, including making deposits, withdrawals, opening an account or closing and account
  • Make investments
  • 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
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 using a health care proxy.

How should I select my attorney-in-fact?

The person you choose for your attorney-in-fact should be someone who you trust and who is reliable and responsible. People often select a trusted family member, a close friend, or a professional such as an attorney, banker, or financial advisor. Keep in mind that the person you choose will have a tremendous amount of power over your finances. It would be unwise to grant such power to a person who you do not trust fully.

Can I appoint more than one attorney-in-fact?

You can appoint more than one person to act as your attorney-in-fact. You would need to decide if they are empowered to act together or if each can act individually. You could also give each specific powers, such as giving one the power to act with respect to your property, while giving the other to act with respect to your finances.

Requiring your attorneys-in-fact to act together has advantages and disadvantages. An advantage is that requiring more than one attorney-in-fact to approve transactions and make decisions allows a system of checks and balances so that decisions are more likely to be sound. On the other hand requiring agreement of more than one attorney-in-fact may result in slower decision-making and perhaps missed opportunities.

An advantage of authorizing your attorneys-in-fact to act separately may ensure that there is always someone available to act for you so that deadlines and opportunities are not missed. However, a disadvantage is that lack of communication and poor coordination may result in confusion, disagreements and duplication of effort.

It is a good idea to name a successor or substitute attorney-on-fact in the event that the primary one is unable to serve.

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.

Is it OK for an attorney-in-fact to transfer my property other people?

You may authorize your attorney-in-fact to provide maintenance to specified people such as your spouse and your children, up to a specified monthly dollar amount. You can also allow your attorney-in-fact to make gifts to members of your family. However, it is not OK for your attorney-in-fact to transfer your property to him or herself. Doing so would be a breach of fiduciary duty.

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. In many ways giving someone your power of attorney is like giving that person a blank check as that person will have access to your financial accounts. 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 is properly executed and 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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