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New York Durable Power of Attorney

A power of attorney is a powerful estate. document. With a power of attorney you give another person, referred to as your "agent" or "attorney-in-fact," power to act for you. There are different types of powers of attorney. You can grant a power of attorney for your finances or you can grant one for your health care. 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. In addition, a power of attorney can also be either very limited and specific, or general. Before drafting your power of attorney, consult a New York power of attorney lawyer who can help you determine which type of power of attorney is appropriate for your circumstances.

Types of powers of attorney

There are many different reasons for you to decide to execute a power of attorney. Regardless of the reason 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 attorney-in-fact comprehensive authority to act for you. For example, if you to 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. Unless it is durable, a general power of attorney is terminated when you revoke it, when you die or when you become incapacitated.
  • 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 example, you can create a power of attorney that would give your agent authority to act on your behalf at a real estate closing since you were unexpectedly called out of town. The limited power of attorney will detail the scope of the authority including when it expires.
  • 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. As an experienced New York power of attorney lawyer will explain, in New York, all powers of attorney are durable unless they state otherwise. 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.

    It is important to note that in New York a durable power of attorney for heath care is referred to as a health care proxy. A health care proxy is used to delegate authority to your health care decisions about your care, including which potentially life-prolonging treatments you prefer to receive and which you would not want. You can also give your health care proxy authority to consent to or refuse medical treatments such as blood transfusions or surgery, make decisions about organ donation, and to arrange for you to be placed in an extended care facility.

  • 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 on in the event you become incapacitated. Or, the power of attorney could become effective when you leave to travel out of the country.
Authority granted in a power of attorney

Whether the power of attorney is general or limited, you decide how much authority or how little to grant. You can be very general or very specific. You can give your attorney-in-fact authority over your finances only or authority over your personal affairs including your healthcare. Examples of authority that you can choose to give your attorney-in fact related to finances include: paying your household bills such as your utilities, paying your real estate and income taxes, managing your real estate, buying and selling real estate, running your business, hiring professionals such as a lawyer or an accountant, and collecting government benefits such as Social Security.

Executing a power of attorney

In New York there are certain steps that you must take in order for a power of attorney to be properly executed and valid. The document must be legible. You must sign and date it. It must also be signed and dated by the person you are appointing as your attorney-in-fact. NY GOB LAW § 5-1501B. A power of attorney typically becomes effective on the date that the agent's signature is acknowledged. The exception to this rule is if the power of attorney is springing. In that case it becomes effective upon the occurrence of the triggering event such as the principal becoming mentally incapacitated. To ensure that your power of attorney is properly drafted and executed, it is important that you work with an experienced power of attorney attorney in New York

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, 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.

Consequence of not having a power of attorney

If you do not have a power of attorney and you become incapacitated, then the result would be that getting things accomplished with respect to your finances or your health care will become more complicated, time-consuming, and costly. Without someone with the authority to take care of your financial matters, your bills may go unpaid, your services may be terminated, you may lose out on opportunities, you may lose insurance coverage, your investment my go sideways, and the over value of your estate may decline. Many people are under the mistaken impression that they would automatically have the authority to access someone’s financial accounts by virtue of being the person’s spouse, parent, child, or sibling. This is not always the case.

With respect to health care, failing to execute an advance health care directive that includes health care proxy and a living will may put your family members in a difficult position. They may not know your wishes and may disagree on the appropriate course of treatment. They may be put into the unenviable position of having to make a difficult choice on your behalf.

With both finances and health care, in the absences of powers of attorney, the court may have to step in and appoint a guardian to take charge of your finances and health care. As a skilled New York power of attorney lawyer will explain, this is not the best option as it is time-consuming and costly. In addition, the person who is appointed still may not make decisions that you would have made.

Additional estate planning 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 should also consider protecting your assets and financial health while you are living and 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.

Contact the Law Offices of Stephen Bilkis & Associates

To learn more about the advantages of a power of attorney as well as other estate planning tools, contact a seasoned power of attorney attorney serving New York at 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: Westchester County, Nassau County, Suffolk County, Manhattan, Queens, Bronx, Brooklyn, Long Island, and Staten Island.

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