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Queens Durable Power of Attorney

There are a number of reasons to execute a power of attorney. One important reason is to ensure that someone you trust has the legal authority to make decisions for you should you become mentally incapacitated due to a serious illness or accident. There are different types of powers of attorney. If you would like to create a power of attorney to plan for incapacity, the power of attorney must be durable. To learn more about the legal requirement for executing a durable power of attorney, contact an experienced Queens durable power of attorney lawyer at the Law Offices of Stephen Bilkis & Associates.

Power of attorney

A power of attorney is a legal document in which you give someone the authority to act on your behalf. In a power of attorney arrangement, you are considered the principal and the person to whom you delegate power is your agent or attorney-in-fact. Powers of attorney can be divided into two general categories: durable and non-durable. A durable power of attorney is one that remains effective even when the principal becomes incapacitated while a nondurable power of attorney terminates when the principal becomes incapacitated.

Generally, a power of attorney ends for 3 reasons:

  • The principal dies
  • The agent dies
  • The principal executes a document terminating the power of attorney
  • A terminating event as stated in the power of attorney happens
  • The principal becomes mentally incapacitated.

This means that the power of attorney would be ineffective should you ever end up in a situation where you are unable to take care of your own affairs due to a mental incapacity. On the other hand, a durable power of attorney remains effective in the face of the principal’s mental incapacity. In fact, oftentimes a power of attorney is “springing,” meaning that is becomes effective only in the event the principal becomes mentally incapacitated.

Under New York Consolidated Laws, General Obligations Law - GOB § 5-1501A, a New York power of attorney is durable unless there is language in it providing that it terminates upon the incapacity of the principal.

Authority in a durable power of attorney

With a durable power of attorney you can grant someone the authority to transactions related to the following financial areas:

  • Real estate transactions
  • Tax matters
  • Banking transactions
  • Retirement benefits
  • Business matters
  • Insurance
  • Estate transactions
  • Health care bill and payment
  • Government benefits
  • Personal and family maintenance
  • Claims and litigation
  • Chattel and goods transactions

As a Queens durable power of attorney lawyer will explain, it is not required that you give your agent the authority to transact business related to all of these possible subject matters. You can choose some of them, or all of them.

Executing a power of attorney

New York Consolidated Laws, General Obligations Law has specific requirements for executing a power of attorney. The power of attorney must be in writing. In fact, the statute is even more specific. A power of attorney must be in legible, and the font size used must be no less than 12 point. The document must be signed and dated by the principal and must be acknowledged. The principal must not be mentally incapacitated at the time he (or she) signs the power of attorney. The person named as the agent in the power of attorney must also sign and date the document. In addition, there is statutory language that must be included.

Durable power of attorney vs. health care proxy

Under New York law, a durable power of attorney is used to give your agent authority related to your finances. In order to give someone authority to make decisions for you related to your medical care, you need to execute another document called a health care proxy. To learn more about the authority you can delegate to your agent in a health care proxy, contact an experienced durable power of attorney lawyer in New York.

Agent vs. executor

Executing a durable power of attorney for finances is not the same as naming someone as your executor. The power of your agent ends upon your death. In order to appoint an executor of your estate, you will need to execute a will. The role of an executor is to manage your estate after your death through probate. However, if you choose to, the same person can be your agent and your executor. You can even name the same person to also be your health care agent. Regardless of who you name to fill these roles, it is important that you name a person (or persons) who is trustworthy, loyal, and who has the ability to handle the responsibility.

Absence of a durable power of attorney

If you become mentally incapacitated and do not have a durable power of attorney, no one will have the authority to care for your finances. This could mean that your bills go unpaid and your estate suffers losses due to inaction. Ultimately, the court will step in and appoint someone to serve as your conservator. The person may or may not be a family member.

Contact the Law Offices of Stephen Bilkis & Associates

As you plan for the future, it is wise to make sure you have named someone to care for your finances in the event that you are unable to. To learn more about the advantages of executing a durable power of attorney, contact an experienced durable power of attorney lawyer serving Queens at the Law Offices of Stephen Bilkis & Associates. In addition to helping you create an effective power of attorney and a health care proxy, we will also explain to you the benefits of an overall estate plan. 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: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.

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Mr. Bilkis handled both my father and mother's estate issues through very difficult times he was compassionate kind and understanding. In fact the whole firm showed great empathy. Despite the emotional hard time we were having that quickly and efficiently handle all the matters that were necessary to get us the result we desired. Can't recommend them enough. B.B.
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