Nassau County Powers of Attorney

Powers of attorney can help you reach several different estate planning goals. It can give a person, known as an agent or attorney-in-fact, broad authority to act on the principal's behalf with respect to all finances. Alternatively, a power of attorney can be quite limited and give the attorney-in-fact authority to engage in specific financial transactions. With a power of attorney, you can also grant the attorney-in-fact authority to make decisions with respect to your healthcare should you become incapacitated. Because a power of attorney is a powerful legal document that can significantly impact your finances, health care and other aspects of your life, it is important for you to contact an experienced Nassau County 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. Furthermore, based on the subject matter of the power of attorney, it can be for finances or for personal matters such as health care.

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. 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 agent 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 book 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.

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 become active in certain circumstances. The circumstance or "springing" event is commonly when you become disabled or mentally incompetent. In such a case the springing power of attorney is a durable power of attorney that is active even though you are incapacitated.

Power of Attorney for Finances. With a power of attorney for finances you give another person the authority to take care of financial matters for you such as paying your rent or mortgage, paying your doctors' bills, managing your bank account, and managing your investments. You may chose to grant someone a power of attorney for your finances to ease your burden of taking care of financial matters. Or, you may decide to execute a springing power of attorney for finances so that someone you trust will have the authority to handle financial matters for you should your become incapacitated.

Health Care Power of Attorney. With a health care power of attorney you give your attorney in fact authority to make medical decisions for you in the event you are unable to speak for yourself because, for example, you are unconscious or mentally incompetent. Like a living will a health care power of attorney is commonly part of an advanced health care directive. Your attorney-in-fact for health care will have authority to make decisions about life-sustaining treatment, palliative care, and organ donation. However, you can specify in the power of attorney your preferences on these issues.

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 will 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 or any other advanced health care directive and you become incapacitated, then your wishes may be unclear or unknown. The court may end up getting involved and may appoint a conservator to make decisions for you.

Without a power of attorney, if you are incapacitated decisions about your financial and medical care will be made according to New York law. In the event of medical incapacitation, usually a family member will be called upon to make any important decisions in the absence of a power of attorney. In this situation, difficulties can arise if there is more than one family member and they differ on the course of medical action. Even more difficulties can arise if there are no family members available at all. In this case, medical decisions will be made by attending medical staff according to what they feel is in the best interest of the patient, and this might not always be what the patient actually wanted, but the absence of any power of attorney makes this inevitable.

In the case of financial estate management, the absence of a power of attorney can lead to time consuming and expensive remedies for family members if proper planning has not been completed. Generally, if a person has not assigned an agent to act on their behalf, control of financial management reverts to the state. Probate courts usually will appoint a guardian or conservator to oversee the management of a person’s estate if there is no legally appointed agent acting on their behalf. If this occurs, family members will have to petition the court for access to the person’s finances. This, of course, takes time and money and can lead to additional frustration on top of dealing with an incapacitated relative.

As you plan for your future health care and finances, in addition to powers of attorney for health care and finances, you may need additional estate planning tools such as a last will and testament, a living will, and a trust. While there are forms available for creating estate planning documents, it is wise to not attempt to draft and execute a power of attorney, or any estate planning document alone, without an experienced estate planning lawyer. Each document is complex and each 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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