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Estate Planning & Elder Law Blog

Friday, April 12, 2019

What You Need to Know About a Durable Power of Attorney in New York

 You may have heard the phrase durable power of attorney.

The key part of this phrase is “durable.”  Regardless of the type of power of attorney, the durable part signals that the POA stays in effect even after the subject of the POA becomes incapacitated.

In the following article, we’re going to break down how a durable power of attorney affects Financial & Healthcare obligations of the person in need of POA.

 

Financial Power of Attorney

 

A financial power of attorney names someone to oversee your finances.  Often this instrument is used if you become incapacitated or are unable to be present to take care of a financial matter.  A lot of the time travelers, service members, students and people in similar situations will establish a financial power of attorney to enable a trusted person take care of business when they cannot be around.

On this point, the person you choose to have power of attorney over your finances should be someone you trust to not steal from you or let your financial obligations fail for some reason.  In short, someone very trustworthy! 

Lastly on this point, naming a financial power of attorney does not mean that you do not have control over your finances – this need not be a permanent arrangement. You can always revoke a power of attorney!

A durable power of attorney, has similar obligations, but stays in effect (or can be setup to go into effect) when you become unable to make your own decisions due to incapacity.  IMPORTANT – if your power of attorney isn’t durable, it wouldn’t be able to help you when you need it most – if you become unable to take care of your own affairs

Some people request a SPRINGING durable power of attorney, which would only go into effect upon certain conditions being met. Usually it is something like two physicians state that you are incapacitated.

A durable power of attorney ends when you die, or on the date you choose. 

 

 

Healthcare Power of Attorney

 

A healthcare power of attorney is called a Healthcare Proxy in New York State. It names someone to make healthcare decision for you if you become incapacitated.  When choosing someone, you want to be sure that they are aware of what decisions you would make for yourself if you are able. That person should also live near enough that they can get to the hospital quickly when the time comes for them to make medical decisions for you, or at least be easily reached by phone.   A few decisions you want to discuss with your healthcare proxy are:

  • Life support measures
  • CPR
  • Antibiotics
  • Do not resuscitate orders

In New York, a healthcare proxy only goes into effect when you are unable to make your own decisions.  And you can change it or revoke it at any time.

  

 

Durable Power of Attorney Requirements in New York

 

According to the New York Consolidated Laws, General Obligations Law, Section 5-1501B, a financial  Power of Attorney must:

  • Be typed or printed using letters which are legible or of a clear type no less than twelve point in size, or, if in writing, a reasonable equivalent thereof.
  • Be signed and dated by you, when you have mental capacity.
  • Be acknowledged by you before a notary public as required for a conveyance of real property.
  • Be signed and dated by the person you name before a notary public.

New York has created a financial power of attorney form as well as a healthcare power of attorney form that need to be filled out and signed by both you and the person you name. 

You do not have to use the same person for both your financial and medical power of attorney.  They can be two separate people. Further, on the financial power of attorney you can have more than one person serving at the same time.

It is a great idea to download the healthcare proxy form and follow the directions to fill it out and have it properly witnessed. But if you are thinking about doing the same thing for the Durable Power of Attorney…

INSERT STOP SIGN GRAPHIC

  

 

Hang on a Second Before You Download Those Forms

 

It is highly recommended that you use an estate planning attorney to prepare the durable power of attorney.  First of all, it is very easy to make a mistake – New York law drastically limits the authority that is granted under the basic power of attorney form. To give your agent the ability to create trusts, transfer assets, change beneficiaries, make gifts, etc. – all the things that you may actually need them to do if you become incapacitated, the basic form must be heavily modified and you need to add a special Rider.  We’ve seen lots of cases where a huge amount of time, stress and money were lost because an inexperienced person forgot a few words or to “Initial Here” in one spot. Moreover, there are other things you need to consider when planning for your financial and health future.  Namely, a Last Will & Testament, a trust, estate taxes, and a couple other things we’d love to tell you about.

If you are ready to set up a durable power of attorney of any type, please contact us today!

 






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