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Nassau County Durable Power of Attorney

While most of us are familiar with wills and trusts being important parts of estate planning, a power of attorney is another important tool. With a power of attorney you as the principal would grant to another person, known as your "agent" or "attorney-in-fact" the authority to act on your behalf with respect to your financial matters or your personal or healthcare matters. Generally, a power of attorney ends when the principal becomes mentally incompetent or upon the principal’s death. However, unless it specially states otherwise a New York power of attorney is durable. This means that that the authority given to the agent remains in effect even if you become mentally incapacitated. It will remain in effect while you are incapacitated and until your death. To learn more about how to makes sure your wishes are honored in the event that you become mentally incapacitated, contact an experienced Nassau County durable power attorney lawyer who will explain to you the mechanics of how powers of attorney works and how one would fit into you overall estate plan.

Authority given in power of attorney

There are two general types of durable powers of attorney: a durable power of attorney for finances and a durable power of attorney for health care.

Durable power of attorney for finances. Powers of attorney are extremely powerful documents. You can give a wide range of powers to your agent. With respect to financial matters examples of powers that you can delegate include:

  • Pay your bills including any bills you had before you became incapacitated such as your credit card bills, utility bills, and personal loans.
  • Manage your real estate including paying your mortgage, making repairs and improvements, and selling it.
  • Pay taxes you owe such as federal, state and city taxes.
  • Manage your bank accounts including making deposits, withdrawals and transfers.
  • Purchase insurance policies for you.
  • Run your business for you including paying bills, executing contracts, and hiring and firing employees.
  • Manage your investments.

When an agent is granted authority in a power of attorney for finances, the agent must keep records and receipts of all transactions made on behalf of the agent. The agent must be prepared to periodically provide an accounting to the Surrogate’s Court. Failure to provide an accounting, or providing an accounting that has discrepancies may result in the court revoking the power of the agent.

In re Cox, 15 N.Y.S.3d 711(Table) (N.Y. Sup. Ct., 2015), in 2001, Willian Monica Cox, executed a durable power of attorney appointing her daughters, Bernadette and Claudette, her agents. Some time after executing the durable power of attorney, Monica Cox became incapacitated. She had advanced dementia, was bedridden with two, stage 4, decubitus ulcers, and was non-verbal and unable to communicate. As a result of her medical condition, Monica Cox required 24 hour care and supervision. When Cox became incapacitated, Claudette handled Cox’s finances. When Claudette passed away, Bernadette took over for caring for Cox’s finances.

Bernadette’s siblings became concern as to how Bernadette was handling Monica’s finances and believed that she was diverting them for her own personal use. After reviewing the records of Monica’s finances, the court had some concerns. Bernadette acknowledged that she comingled her personal funds with the Monica's assets by depositing her personal funds into the joint bank account she held with the Monica. As a result of comingling her personal funds with the Monica's assets, Bernadette was unable to distinguish what funds belong to Monica and what funds belong to her. Additionally, the documentary evidence showed that Bernadette made cash withdrawals and various expenditures from the Monica's accounts for personal items such as pharmaceuticals, clothing, groceries and fast food. While these transactions may not have amounted to misappropriation, the court was concerned that Bernadette could not properly account for the assets that she managed on behalf of the AIP.

Ultimately the court found that Bernadette violated her fiduciary obligations. The Court noted that Bernadette failed to provide any form of accounting for the disposition of Monica's assets, thus indicating a failure to keep a record of all receipts, disbursements, and transactions as required by New York General Obligations Law § 5–1505 (2)(a)(3). As a result, the Court concluded that Bernadette violated her fiduciary duty in failing to account for all the transactions from Monica's accounts as of the date she assumed sole responsibility for the management of the Monica's finances. As a result, the court revoked Monica's durable power of attorney so that Bernadette was no longer her agent.

Durable power of attorney for health care. As an experienced Nassau County durable power attorney lawyer will explain, in New York a durable power of attorney for health care is now called a health care proxy. It gives the agent named the power to make medical decisions in the event the principal is determined by a doctor to be incapable of making medical decisions. For example, people who have suffered a severe stroke, serious brain damage, or who are in a coma often do not have the capacity to communicate their wishes to their doctor. With a health care proxy in place, there will be someone who the incapacitated person trusts who will have the authority to make critical medical decisions for the incapacitated person.

With a power of attorney for healthcare, you can grant someone the authority to:

  • Consent to or refuse particular treatments such as blood transfusions, medication, and surgery.
  • Consent to or refuse life extending procedures such as CPR.
  • Make decisions about organ donation
  • Become your guardian

A durable power of attorney for health care or a health care proxy does not empower the agent to make medical decisions for a principal who is conscious and capable of making his (or her) own decisions. Under New York law, a health care proxy only allows the agent to make medical decisions in the event that a doctor determines that the patient is incapable of making decisions.

Regardless of the specific authority that you grant with your power of attorney, as a Nassau County durable power of attorney lawyer will explain, the agent has the legal obligation to act in your best interest and not in his or her best interest. While you can name on person to serve as your agent for both financial and health care matters, you can also name different people.

Executing a durable power of attorney

Under New York law there are specific requirements in order for a power of attorney to be properly executed and effective. It must be legible. It must be signed by both the principal and the agent. It must also have the required statutory language.

It is important to understand that for either a durable power of attorney for finances or a health care proxy to be valid, the principal must be mentally competent at the time the document is executed. For example, in the case of in the Matter of Rose S. Martin GS, 293 A.D.2d 619 (N.Y. App. Div., 2002), Rose executed power of attorney on June 22, 1999. While initially there is a presumption of competence, if medical evidence is presented to rebut that presumption, it is up to the person asserting competent to present evidence. In this case there was testimony that Rose suffered from dementia since 1989. In addition, she was diagnosed with dementia by a doctor at a hospital on June 23, 1999, one day after she signed the health care proxy. One of her treating physicians testified that she was not competent to sign a health care proxy on June 24, 1999.

New York courts have concluded that a diagnosis of a condition such as dementia alone is not necessarily enough for a finding that someone lacks competency. In this case, there was additional evidence. Rose's hospital record from her hospital stay of June 19 through June 24, 1999, indicates various instances of confusion and disorientation. As a result, 2 hospitals refused to honor the health care proxy appointing the petitioner as the health care agent. Because of the evidence of a diagnosis of dementia coupled with evidence of several instances of confusion around the time that the health care proxy was executed, the court found that the health care proxy was invalid.

Once a power of attorney is executed, it remains in effective until your death unless you revoke it. If the durable power of attorney became effective due to your mental incapacity, if you again become competent, the power of attorney will be terminated. Furthermore, if the durable power of attorney was limited, allowing your agent to complete only certain activities, once those activities have been accomplished, the agent’s power terminates.

You do have some flexibility in designing your power of attorney to ensure that your agent has the authority that you want him or her to. To ensure that it is drafted correctly, contact a durable power of attorney lawyer in Nassau County. Keep in mind that an agent is not the same as an executor. The agent’s power ends upon your death, while your executor’s authority begins upon your death, once your will goes into probate.

Planning for incapacity

Executing durable powers of attorney is important for planning for the possibility that one day you might become mentally incapacitated. Another document to consider is a living will which, along with you health care proxy, is an advance health care directive. With a living will you would leave instructions as to the medical care you do and do not want to receive should there come a time that you are mentally incapacitated and unable to communicate, and you are likely at the end of your life. You can leave instructions related to treatments such as cardiopulmonary resuscitation (CPR), mechanical ventilation, tube feeding, dialysis, antibiotics or antiviral medications, palliative care, and organ and tissue donation.

Contact the Law Offices of Stephen Bilkis & Associates

As you consider how to plan for your future and the possibility that at some point you may become incapacitated due to an illness or accident, it is important to consult an experienced durable power of attorney lawyer serving Nassau County who understands the legal issues related to durable power of attorneys. In addition, as with all of your estate planning documents, you should periodically revisit your powers of attorney to make sure the person you have named as your agent remains your choice and that that person is willing and able to take on the responsibility. To learn more about the advantages of a durable power of attorney as well as other estate documents, contact the Law Offices of Stephen Bilkis & 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 case. We represent clients in the following locations: Nassau County, Bronx, Brooklyn, Long Island, Manhattan, Queens, Staten Island, Suffolk County, and Westchester County.

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