Durable Power of Attorney in NY

What is a Power Of Attorney?

A power of attorney is a legal document that allows one person (the "principal") to grant to another person (the "agent" or "attorney-in-fact") the legal authority to make decisions and enter into transactions on the principal's behalf.  The legal authority granted can be significant, including the ability to sell or purchase real estate, transfer money, buy or sell securities, make gifts, and the like.

Here are two examples of when a power of attorney will be used:

An elderly widow living in Manhattan, who finds it difficult to manage her financial affairs, wants to give the legal authority to her eldest son to write checks on her bank account in order to pay her monthly bills and expenses, and to liquidate certain of her assets.

A grandfather decides to sell his house in Brooklyn and move close to his daughter in a White Plains assisted living facility, but he does not feel comfortable about reviewing all of the necessary legal documents and going to the closing.  He wants to give the legal authority to his daughter to sign all the papers and complete the sale on his behalf.

Each of these examples illustrates when a power of attorney will be needed. The elderly widow in Manhattan will give her eldest son a power of attorney and the grandfather will give a power of attorney to his daughter who lives in White Plains.

What Is a "Durable" Power of Attorney?

A power of attorney is frequently used in circumstances when the “principal” is perfectly competent to manage his or her own affairs.  For reasons of convenience or preference, the principal prefers to give legal authority to his or her attorney-in-fact.

However, the power of attorney is also used in circumstances when the “principal” fears that, in the future, he or she may not be competent to manage his or her affairs.  This may occur by reason of disability or incapacity, or simply as a result of the aging process.

In this situation, a “durable” power of attorney becomes essential.  A power of attorney is “durable” if it continues in full force and effect, even when the principal is no longer competent.
The durable power of attorney gives the principal peace of mind, by assuring that his or her affairs will be managed by a trusted family member or friend.  Without a durable power of attorney, it would be necessary to apply to a court to appoint a “guardian” (who could be a total stranger) to manage the incompetent person’s affairs.

Lamson & Cutner will advise you on the proper uses of a power of attorney to manage your financial affairs and other matters, and on the particular clauses that should be included in the power of attorney to make it durable, and to make it useful for the purposes required, such as to allow the attorney-in-fact to make necessary decisions for Medicaid planning.

Already Have a Durable Power of Attorney?

If you already have a durable power of attorney, it should nevertheless be reviewed by an experienced Elder Law attorney to make sure that it has all of the clauses needed for proper Medicaid planning.