and Your Family
Suffolk County Attorney-in-Fact
Appointing someone to be your attorney-in-fact does not mean that the person you name is your lawyer. The term "attorney-in-fact" is another word for agent. If you name someone as your agent, then you authorize that person to act on your behalf when you are unable to do so. The estate document that you would use to appoint someone as your attorney-in-fact is called a power of attorney. In that document you would indicate what you authorize your attorney-in-fact to do. You can grant your attorney-in-fact very specific powers to perform certain duties, or you can grant that person very broad powers. For example, with a power of attorney you can grant your attorney-in-fact general power to handle your financial matters. That would include such activities as banking, investing, and real estate transactions. Or you can be more specific and only give your attorney-in-fact power to do your banking for you, or complete one very specific transaction. Whether you grant your attorney-in-fact broad or narrow authority, you are granting that person authority over at least some part of your financial affairs. Because of the potential serious financial consequences of making someone your attorney-in-fact, before you execute a power of attorney, seek the advice of an experienced Suffolk County attorney-in-fact lawyer who can help you select the appropriate person to act as your attorney-in-fact and who will help you understand how to execute a power of attorney that fits your needs.Types of powers of attorney
Durable vs. non-durable. A power of attorney can be durable or non-durable. Typically, in order for a power of attorney it be valid the principal must not be mentally incapacitated. If after executing a power of attorney the principal was injured in an accident or became ill and as a result was mentally incapacitated, the power of attorney would immediately become invalid. This type of power of attorney would be “non-durable.” Durable powers of attorney are often used for when is authority is delegated for single transactions or is limited to discrete period of time.
On the other hand, if the power of attorney contains language indicating that it would remain valid even if the principal became mentally incapacitated, or it would become valid in the event the principal became mentally incapacitated, then the power of attorney would be “durable.” Discuss with an experienced Suffolk County attorney-in-fact lawyer about the advantages of executing a durable power of attorney as a planning strategy. They are commonly executed as part of a strategy to ensure that someone will have the authority to care for the principal’s finances in the event that he (or she) at some point in the future becomes mentally incapacitated. In New York powers of attorney are durable unless there is language in the document that states otherwise.
- Limited power of attorney. A limited power of attorney gives the attorney-in-fact power to act on behalf of the principal for a limited period or limited purpose. For example, Jonah was scheduled to sign a deed to property on February 18th. He later found out that he had to attend an out-of-state meeting on the 18th that was critical to his business. He could not miss it. He decided to execute a limited power of attorney giving his son authority to sign the deed to the property for him. The power of attorney did not extend to any other transactions, nor did it give the son any other authority.
- General power of attorney. Unlike a limited power of attorney, a general power of attorney is comprehensive and gives your attorney-in-fact practically all the powers and rights that you have yourself. For example, a general power of attorney may give your attorney-in-fact the right to conduct banking for you, sign contracts for you, pay your bills, and conduct other financial transactions on your behalf.
- Power of attorney for finances vs power of attorney for health care. A power of attorney can be for finances or for heath care. In New York a durable power of attorney for health care decisions is called a health care proxy.
- Spring power of attorney. A springing power of attorney becomes effective only when a specific event occurs.
When you execute a power of attorney for finances, there is a wide range of authority that you may give your attorney-in-fact, including the authority to:
- Pay your bills
- Pay your every day expenses
- Buy, sell and manage real estate and
- Pay taxes including income taxes and real estate taxes
- Manage your bank accounts, investment accounts, and retirement accounts
- Run your small business for you
- Hire professionals on your behalf such as an attorney or accountant
- Collect your government benefits such as Social Security and Medicare
With a health care proxy, you can appoint an agent to make health care decisions related to treatments, medications, and organ donation.
For more information about the powers that can be delegated and the authority that cannot be delegated, contact an experienced attorney-in-fact attorney in Suffolk County.Appointing an attorney-in-fact
In order to appoint an attorney-in-fact you must execute a power of attorney. In New York there are certain formalities that must be followed in order for the power of attorney to be valid. For example it must be legible. In addition, you must sign, date it and your signature must be acknowledged. It must also be signed and dated by the person you are appointing as your attorney-in-fact. NY GOB LAW § 5-1501B.
The attorney-in-fact must be at least 18 years old and must not be mentally incapacitated.
A power of attorney typically becomes effective on the date that the agent's signature is acknowledged, unless it is springing. In that case it only becomes effective in event you become incapacitated or some other contingency occurs.Revoking a power of attorney
Depending on the type of power of attorney and its purpose, it terminates upon the happening of at least of the following events:
- Principal dies
- Principal becomes incapacitated (unless the power of attorney is durable)
- Principal rescinds the power of attorney
- The date stated in the power of attorney
- The purpose of the power of attorney is accomplished
- The person named in your power of attorney is no longer willing or able to act as your attorney-in-fact
The consequence of not appointing an attorney-in-fact can be significant. If you are needed to execute a document or perform some other legal obligation, then there may be legal or financial consequences if you are not available and no one has the legal authority to act for you. For example, there may be no one who can access your bank account in order to pay your bills. Similarly, if you do not have a health care proxy, there will be no one to make medical decisions for you. Even if you are married, your spouse may not have the authority to make financial transactions on your behalf or decisions about your medical treatment.
As an experienced Suffolk County attorney-in-fact lawyer will explain, in the absence of a power of attorney the court may step in and appoint a guardian to manage your affairs. The guardian may be your spouse, adult child, other family member, or friend. The court may appoint one person to as the guardian for your finances and another person as the guardian for your personal affairs. However, the person or people appointed may not be who you would have selected.Contact the Law Offices of Stephen Bilkis & Associates
As you consider how to plan for the possibility that at some point you may become incapacitated due to an illness or accident or that you might be temporarily unavailable for some other reason, it is important to understand the legal consequences of appointing an attorney-in-fact. Not only must your power of attorney be clear and properly executed, you must also make sure that you select the right person to serve as your attorney-in-fact. Because of the high financial stakes involved, in creating your power of attorney it is important to work with someone who has experience. To learn more about the advantages of a durable power of attorney and how to select an attorney-in-fact contact an experienced attorney-in-fact attorney serving Suffolk County at the Law Offices of Stephen Bilkis & Associates. We will not only help you with your questions related to powers of attorney, but we will also work closely with you to make sure that you have a comprehensive estate plan that reflects your individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Bronx, Staten Island, Queens, Brooklyn, Long Island, Manhattan, Suffolk County, and Westchester County.