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 critical aspect of a durable power of attorney is its enduring nature. Regardless of the type of power of attorney, the term “durable” indicates that the POA remains valid even if the individual it concerns becomes incapacitated.

In this article, we will explore the implications of a durable power of attorney on the financial and healthcare responsibilities of the person requiring a POA. Don’t hesitate to consult an experienced New York estate planning attorney to help you navigate the complexities of setting up a durable power of attorney tailored to your unique needs. Call the New York Legacy Lawyers today at (718) 713-8080 to schedule a consultation.

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 to 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. 

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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.

	Financial Power of Attorney	Healthcare Power of Attorney
Purpose	Manage finances when unable to do so	Make healthcare decisions when unable to do so
Trigger	Incapacity or absence	Incapacity
Trustee	Someone trustworthy	Someone aware of your wishes and able to act on your behalf
Duration	Can be revoked	Can be revoked
Durability	Durable or springing	Durable
Termination	Upon death or date chosen	Upon death or date chosen
Scope of authority	Financial matters such as bill payments, investments, and taxes	Healthcare decisions such as life support, CPR, antibiotics, and DNR

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 needs 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…

Do Spouses Automatically Have Power of Attorney?

Even if you’re married, it’s crucial to understand that spouses don’t automatically have power of attorney. Without establishing a power of attorney, you leave the door open for strangers to make critical decisions on your behalf.

Should you become incapacitated without a power of attorney in place, your spouse will face the daunting task of going to court to obtain legal authority to act for you. This process is time-consuming and expensive, causing additional stress during an already difficult period.

Marriage alone doesn’t grant your spouse the right to act on your behalf. In the absence of a power of attorney, they must apply to the Court of Protection. This court determines mental capacity, makes decisions regarding health, care, property, and finances, and appoints a deputy to act for the incapacitated person. Unfortunately, you cannot choose your own deputy, and their authority will be limited by the court’s decision.

Don’t let uncertainty define your future. Consult with an experienced estate planning attorney today to establish a power of attorney, ensuring that your interests are protected, and your decisions are made by someone you trust. Call the New York Legacy Lawyers today at (718) 713-8080 to discuss your options and secure peace of mind for you and your loved ones.

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 of 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! Get the support you need from our New York legacy lawyers.

https://yanafeldmanlaw.com/what-you-need-to-know-about-a-durable-power-of-attorney-in-new-york/
from New York Legacy Lawyers by Yana Feldman and Associates https://yanafeldmanlaw.com/what-you-need-to-know-about-a-durable-power-of-attorney-in-new-york/