and Your Family
Suffolk County Durable Power of Attorney
With a durable power of attorney, you are able to appoint someone to manage your financial affairs or conduct other business for you while you are incapacitated. The person you appoint is called your attorney-in-fact or agent. A durable power of attorney is effective when you are incapacitated, while a conventional power of attorney would not be effective if you became incapacitated. There are various ways that you can design your durable power of attorney in order to only give your attorney-in-fact the authority that you chose to delegate. Because of the extraordinary power that you would grant your attorney-in-fact, it is important to understand exactly how a durable power of attorney works and the legal requirements for executing one. As you consider naming someone as your attorney-in-fact in a durable power of attorney, contact an experienced Suffolk County durable power of attorney lawyer at the Law Offices of Stephen Bilkis & Associates who will be able to explain to you the legal significance of executing a power of attorney and who will ensure that your power of attorney is in compliance with New York law.Durable power of attorney
A durable power of attorney is a legal document in which you as the principal appoint another person to be your agent with the legal authority to act for you. A durable power of attorney remains in effect even if you become mentally incapacitated. In drafting your power of attorney, you have enormous flexibility in granting and limiting the power of your agent. For example, with a power of attorney for financial matters, you can grant someone the authority to:
- Buy or sell real estate
- Buy or sell other types of property
- Buy, sell and manage securities
- Manage your bank accounts
- Operate your business
- Handle claims and litigation
- Manage your benefits such as your retirement or military benefits
- Purchase insurance policies for you
- Handle tax matters
You can even grant your attorney-in-fact the authority to give your spouse, children, parents and other relatives gifts. N.Y. GOB. Law § 5-1501 et seq.Executing a durable power of attorney
In order to properly execute a power of attorney, there are certain formalities that must be followed. The power of attorney must be legible. You must sign, date it and your signature must be acknowledged. It must also be signed and dated by the agent named in the power of attorney. Furthermore, there is certain statutory language that must be included in the power of attorney in order for it to comply with New York law. NY GOB Law § 5-1501B. A durable power of attorney typically becomes effective on the date that the agent's signature is acknowledged. However, you can make the power of attorney "springing," so that it only becomes effective in event you become incapacitated or some other contingency occurs. To learn more about executing a durable power of attorney and determining the powers you would like to delegate, contact an experienced Suffolk County durable power of attorney lawyer.Ending a durable power of attorney
If you decide that you need to terminate the power of attorney, you must give notice to the agent. You can revoke a durable power of attorney any time you choose to as long as you are mentally competent. Revocation of a durable power of attorney occurs automatically if you die, the purpose of the power of attorney is accomplished, or the agent dies or becomes incapacitated. NY GOB LAW § 5-1511.
It is important to understand that a durable power of attorney does not authorize your attorney-in-fact to manage your estate once you pass away. As an experienced Suffolk County durable power of attorney lawyer will explain, upon your death, the winding up of your affairs and administering your estate is the job of the executor named in your will. If you do not have a will, than the Surrogate’s Court will appoint an estate administrator. If you want the person who you name as your agent in your durable power of attorney to also handle your affairs after your pass away, you must also name that person in your will as your executor.Absence of a durable power of attorney
The consequence of not having a durable power of attorney is should you become incapacitated your financial affairs may suffer because there may be one with the legal authority to care for your financial affairs. There may be no one who can access you bank account, your credit card accounts, or even your utility accounts to make sure your bills continue to be paid on time. There may be no one to care for your investment accounts to prevent losses or take advantage of opportunities. Just because you are married does not automatically mean that your spouse will be able to access accounts that are solely in your name.
In order to prevent your finances from going completely awry, at the petition of a family member or a government agency, the court is likely to step in and appoint a guardian to manage your finances. The court will seek to appoint a family member to act as your guardian. However, if there is no suitable family member available, the court may appoint someone who is not a family member. Regardless of whether the guardian is a family member or not, the guardian will be supervised by the court and must answer to the court.
The guardian will remain in place as long as the court determines that the guardian is needed. If your medical condition improves enough so that you are able to resume taking care of your affairs, the court will end the guardianship. Otherwise, the guardianship will continue until the ward passes away. As an experienced durable power of attorney attorney in Suffolk County, at that point the affairs of the decedent’s estate will be managed by the executor of the estate or the estate administrator appointed by the Surrogate’s Court.Durable power of attorney for health care
A durable power of attorney for health care is a power of attorney that grants another person the authority to make health care decisions for you should you become incapacitated. In New York a durable power of attorney for health care is called a health care proxy and the agent you appoint is called your health care agent. Anyone 18 years of age or older can be a health care agent.
Your health care agent would begin to make health care decisions after your doctor decides that you are not able to make your own health care decisions. As long as you are able to make health care decisions for yourself, you will have the right to do so.
Unless you limit your health care agent’s authority, your agent will be able to make any health care decisions that you could have made if you were able to decide for yourself, including that you should receive treatment and choosing among different treatments and deciding that treatments should not be provided. Your agent can also make decisions about artificial nutrition and hydration (nourishment and water provided by feeding tube or intravenous line). Any decision that your health care proxy makes must be in accordance with your wishes. Your health care agent will not have the authority to make financial decisions for you or other non health care decisions for you.Contact the Law Offices of Stephen Bilkis & Associates
Issues related to incapacity and end-of-life decisions are very complicated. It is important that you make well-considered choices in advance. An experienced durable power of attorney attorney serving Suffolk County will be able to explain to you your options for your power of attorney as well as other documents that are essential for planning for future incapacity. The staff at the Law Offices of Stephen Bilkis & Associates regularly works with New York clients to help them draft durable powers of attorney, advance health care directives, and other estate documents related to planning for long-term care. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Suffolk County, Nassau County, Bronx, Staten Island, Queens, Brooklyn, Manhattan, Westchester County, and Long Island.