Westchester County Power of Attorney Lawyer

A power of attorney is a document that gives another person the legal authority to act for you. The person who you name in the power of attorney to act for you is called your agent, or attorney-in-fact. While you many not think of a power of attorney as an estate planning document, it is indeed a powerful estate planning tool that may be vital to reaching your overall estate planning goals. The person who you name as your agent will use the authority granted in the power of attorney when you cannot act for yourself because you are incapacitated or otherwise unavailable. If you do not have a power of attorney and you are suddenly incapacitated by an accident or an illness, for example, your affairs may wind up in disarray. In other words, a power of attorney will go a long way to giving you peace of mind that in an emergency someone has the legal authority 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. However, in New York a power of attorney for health care is referred to as a health care proxy. A power of attorney can take effect immediately or can be designed so that it takes effect only upon the occurrence of a particular event such as you becoming incapacitated. In addition, a power of attorney can be either very limited or it can grant broad powers. Before executing a power of attorney, consult a Westchester County Power of Attorney Lawyer who can help you determine who you should name as your agent and which powers you should grant that agent.

Types of Powers of Attorney

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 agent broad authority to act for you. For example, if you 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.
  • 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 instance, if certain legal documents must be executed on a particular date but you cannot be there to sign the documents on that day because you will be out of town or because you have another comittment, you can give another person the authority to sign the documents for you. The power of attorney document will detail the limited purpose of the power of attorney. It will also indicate when the authority ends.
  • 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. Otherwise, a court will appoint a conservator for you. 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. In New York powers of attorney are durable unless the power of attorney states otherwise.
  • 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 when 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. Examples of authority that you can choose to give your attorney-in fact 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.

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 willing or able to fulfill his or her duties as your attorney-in-fact.

Consequence of Not Having a Power of Attorney

The consequence of failing to execute a power of attorney can be significant, particularly if you become mentally incapacitated. If you do not have a durable power of attorney naming an attorney-in-fact and a health care proxy naming a health care agent and you become incapacitated, then your wishes may be unclear or unknown. The court may end up getting involved and may appoint a conservator to make decisions for you.

The court may appoint a family member such as a spouse, adult child or adult sibling to be your conservator. If, however, there is no family member who is available to assume the role, the court may appoint a public or professional conservator who is a stranger. Whether the conservator appointed by the court is a family member or not, if did not execute documents stating your wishes, the conservator may not truly know what you would want to with your finances, your personal affairs or your health care. Furthermore, the conservator does not necessarily have to get family input on decisions. The conservator is required to only act in what he or she determines to be your best interest, and is only 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, the conservatorship will remain in place until your death. It is important to note that naming an agent in your power of attorney is quite different from naming an executor in your will. Your agent's duties typically end upon your death while your executor's duties begin upon your death.

Other Vital 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.

A power of attorney is an important part of a comprehensive estate plan that many people overlook. It helps make sure that your financial affairs are taking care of by someone you trust in the event you are not able to take care of them yourself. While a power of attorney is an important document, it is not the only document that you will need in order to have a complete estate plan. It is also important to have a last will and testament to set forth your final wishes, a trust to leave property to your beneficiaries and avoid probate, and an asset protection plan. To learn more about the advantages of a power of attorney as well as other estate planning tools, contact Stephen Bilkis & Associates, PLLC. 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 estate plan. We serve individuals throughout the following locations:

1.800.NY.NY.LAW (1.800.696.9529)