Suffolk County Durable Power of Attorney Lawyer

A durable power of attorney is an estate planning document that is often part of an advanced health care directive. Unlike power of attorney that is not durable, a durable power of attorney is effective when you are incapacitated. With a durable power of attorney, you are able to appoint an attorney-in-fact to manage your financial affairs, make health care decisions for you, or conduct other business for you why you are incapacitated. A durable power of attorney may be general or limited. With a general durable power of attorney you grant your attorney-in-fact board powers to do every act which may legally be done by you. On the other hand, a limited durable power of attorney allows the attorney-in-fact to perform only specific acts such as selling property or making investments. As you consider naming someone as your attorney-in-fact, contact an experienced Suffolk County Durable Power of Attorney Lawyer who will be able to educate you on a durable power of attorney, as well as other important estate planning tools such as a will, trust, living trust, living will, and advanced health care directive.

What is a Durable Power of Attorney?

A durable power of attorney can give very broad or very narrow powers to the agent. 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:

  • Pay your bills and every day expenses as well as those of your family
  • Manage your real estate
  • Buy and sell real estate
  • Pay taxes
  • Manage your bank accounts
  • Purchase insurance policies for you
  • Run your business for you
  • Manage your retirement accounts
  • Hire professionals on your behalf such as an attorney
  • Invest your money
  • Collect your government benefits such as Social Security and Medicare

With a power of attorney for healthcare, you can grant someone the authority to:

  • Consent to or refuse particular treatments
  • Consent to or refuse life extending procedures
  • Make decisions about organ donation
  • Become your guardian

You can name the same person to be your agent for health care and for finances. However, it is important to make sure that person is qualified to fill both roles. Otherwise, it may be a good idea to name separate agents. In both cases, the person you name in the durable power of attorney must act in your best interest. Furthermore, that person or persons must keep your interests separate from his or her own. For example, your agent must not commingle your funds with his or her own in a single bank account.

What is Needed to Execute 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.

When Does a Durable Power of Attorney End?

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 your are 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.

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 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.

What is the Relationship Between a Durable Power of Attorney and an AHCD?

An advanced health care directive (ACND) is a general term for a document that directs and instructs family members, friends and health care professionals about your medical care in the event you become incapacitated and are not able to express your wishes. As a part of your ACHD you can create a durable power of attorney and appoint someone to serve as your health care agent.

Your health care agent will have the legal authority to make decisions related to health care for you. The durable power of attorney will only become effective if you should become incapacitated and cannot make decision for yourself. You can nominate the person of your choice as your health care agent in your durable power of attorney. The person, however, should be some you know well and who you can trust. A spouse, child, parent, or close friend are commonly named. Prior to executing your durable power of attorney it would be a good idea to have a candid discussion with the person you intend to appoint as your agent as to what your preferences are under various scenarios. For example, you should let your health care agent know what your preference as to what life-prolonging treatments you would like to receive if your condition becomes so bad that it is not likely that you will recover.

Another type of advanced health care directive is a living will. In a living will instead of nominating someone to make decisions for you, you provide specific instructions as to what should be done if your health deteriorates to the extent that you become incapacitated.

What if I do not have a Durable Power of Attorney?

The consequence of not having a durable power of attorney or any other type of an advanced health care directive is that your loved ones will not know your wishes. Furthermore, there may not be a plan or an understanding as to how your financial and personal affairs should be handled while you are incapacitated. The result may be that the court will step in and appoint a conservator to make decisions for you. In general, a court will seek to appoint a family member to act as your conservator. However, if there is no suitable family member available, the court may appoint a stranger. The conservator will not be accountable to your family, but will be accountable to and supervised by the court. The conservator will remain in place as long as the court determines that he or she 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 conservatorship. NY MHY LAW § 81.36. Otherwise, conservatorships remain in place until the conservatees pass away.

A conservator can be appointed to take care of your finances or to take care or your day-to-day well-being. In many cases, particularly if you are incapacitated, a conservator is appointed to handle both your finances and your well-being. Referred to as a "conservator of the person," a conservator who is appointed to make decisions about your personal well-being will make decisions about your housing, healthcare, and other aspects of your personal care. If necessary, the conservator may decide that it is in your best interest to live in an extended care facility or a group home. On the other hand, if you have a living will or a durable power of attorney for healthcare, it would detail your instructions on your care in the event you become incapacitated, including who will serve as your guardian.

A "conservator of the estate" makes decisions about your finances. He or she will manage your assets, pay your bills, make investments, and collect income. The court will require the conservator of the estate to keep detailed financial records and regularly report to the court about the status of your finances.

What Else Should be Part of My Estate Plan?

While a durable power of attorney is an important part of your estate plan, it should not be the only component. A durable power of attorney only address certain personal and financial issues in the event that you become incapacitate. You should also consider protecting your assets and financial health while you are living and also planning for how your estate should be handled upon your death. To do this, you will need other essential documents such as a will and a trust.

A will is an estate planning tool that most people are familiar with. It 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, a trusts also offer financial benefits such as tax savings and asset protection.

The components that you should consider for your comprehensive estate plan will depend on the size of your estate as well as your personal and financial goals. A well thought out plan and properly draft and executed estate plan documents will ensure that you meet your personal and financial goals for you and your family.

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 Suffolk Durable Power of Attorney Lawyer will be able to explain to you your options for your powers of attorney as well as other documents that are essential for planning for future incapacity. The staff at Stephen Bilkis & Associates, PLLC regularly works with New York clients to help them draft durable powers of attorney as well as other estate planning documents. We will review your goals and help you develop an overall estate plan that reflects your needs. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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