Power of Attorney The Power of Attorney is a document which should be prepared and explained by a qualified attorney. It grants very broad and sweeping powers to another individual, who can then sign your name to various legal and financial documents, thereby binding you as if you had signed the same documents yourself. Because this document is very powerful, it should only be granted to an individual in whom you have a great deal of trust.
There have been changes to the law in New York, which became effective in 1994 and 1996, that make it easier to restrict the scope of the Power of Attorney and to also have it take effect at a later time. The new law requires that anyone who is granting a Power of Attorney put their initials i n various places on the form, to indicate their desire to have the Power of Attorney valid with regard to particular transactions. There are boxes which indicate, for example, real estate transactions or banking transactions. If a general Power of Attorney is to be executed, you may initial one box so as to make the Power effective for transactions of any nature whatsoever.
The Power of Attorney indicates that it is to be a durable Power of Attorney. Durability of the Power means that it survives any future disability. If you are not capable of handling your own affairs, the Power of Attorney would continue to be valid and, therefore, your agent would be able to tend to your affairs in spite of your continuing disability.
It is very important for a Power of Attorney be durable. Most people really only need it if they suffer from some illness or disability, such that it is necessary to use the document so that someone else can transact their business.
New York Law also authorizes the use of what are called Springing Powers of Attorney. This Power of Attorney would take effect only upon the certification by a physician of the principal's inability to handle his or her own affairs by virtue of a disability. This certification must be attached to the document before such time as the Power of Attorney is filed in the County Clerk's Office or used for any transactions.
You may now also grant a Power of Attorney to more than one individual. It can be granted jointly to either one person or the other such that each may exercise the power, or to one person and the other such that both parties must sign to exercise the power.
A durable Power of Attorney is a very useful document and should be considered by anyone over 55 years of age. Naturally, each of us hopes that we are always in a position that we can handle our own affairs, however, if by some unforeseen illness or accident we are rendered incapable of adequately handling our legal and financial matters, a Power of Attorney is invaluable.
In the absence of such a document, it would be necessary for a spouse or family member to commence a guardianship proceeding, which requires the action of the Supreme Court. This process would entail unnecessary legal expenses and Court filing fees as well as fees for court evaluators. It is expensive and distasteful, and most significantly usually unnecessary if one has executed a valid durable Power of Attorney.
You should consult with a qualified Elder Law Attorney to have this document prepared and executed such that you can be assured that it is done properly. The document can then be deposited with your attorney for safekeeping to be produced only when necessary. A Power of Attorney should not be p u t in your safe deposit box, since your agent would not be able to gain access to the box and therefore the document would be useless. |
