5 Important Considerations for Preparing a Durable Power of Attorney

Last Updated: May 2026 by Degna Levister – Director of the Elderlaw Project

(1) The Crucial Difference Between a Durable Power of Attorney (POA) and a Guardianship

Over time, changes in physical or mental health may affect the ability to stay on top of life demands. You may be managing your financial matters without help but it is wise to plan ahead. Do you know how you will continue to handle your affairs, should you need help in the future? For many, facilitating this assistance will come down to a Durable Power of Attorney (POA) or guardianship. Preparing a POA is not only a simpler process than appointing a guardian, it’s one you can control. With a POA, you choose your agent(s) and the scope of their powers. If you change your mind about the Agent you can revoke (cancel) the POA by notifying them, as long as you still have mental capacity. By contrast, a guardian is appointed by a court. New York State rules specify the order of preference to be applied among your relatives – the person appointed as your guardian may not be the person you would have chosen for yourself. Similarly, it’s the court that decides what power you guardian has. You also cannot “end” a guardianship yourself, it would need to be terminated by a court.

(2) A POA is a Crucial Element in Advance Planning

A POA offers you protection and convenience. With a POA, you (the “Principal”) choose an “Agent.” Your Agent can act on your behalf on financial matters such as handling your bills and taxes. An Agent will only have the powers to act that you grant to them. You may include a wide range of powers, or choose only specific powers – the decision is yours. If you want to allow someone to help you take care of banking matters, a POA is a safer option than adding them to your bank account as a joint owner. Joint ownership can be risky because each joint bank account owner has access to all funds. Should their finances ever become part of a legal proceeding (such as a divorce settlement or debt related lawsuit), funds held in their name may be at risk, including your bank account.

(3) Timing is Essential

If you plan to get a POA you must do so while you have ‘mental capacity’ – meaning you must be able to understand the nature (or purpose) of a POA and the consequences of signing one. Timing is important for signing a POA since no one can sign one for you; only you can do that. Having a POA does not affect your right to continue making your own decisions; as long as you are not mentally incapacitated, your agent must follow your directions when using it. If you later lose the ability to make decisions, your agent can handle your financial affairs and must act in your best interests while doing so.

(4) Without a POA, You May Need a Guardian 

If you become mentally incapacitated and don’t have a POA in place, a relative may have to go to court and petition to be appointed as your guardian to make decisions on your behalf. Without a POA or court appointed guardian, many businesses, including banks, won’t provide anyone with essential information or access to your accounts. Depending on your ability to make decisions, the court may appoint a ‘guardian of the property’ to handle your financial affairs, such as paying bills on time and maintaining your investments. They may also appoint a ‘guardian of the person,’ should you need assistance with handling your personal needs, such as health matters. In other cases, the guardianship may cover both.

 (5) Prepare a Health Care Proxy and a POA

While a POA allows your agent to handle your financial matters, a Health Care Proxy (HCP) enables you to appoint an Agent to make health care decisions on your behalf. A health care agent can only act when you are unable to make those decisions for yourself. The combination of powers (POA and HCP) will provide your agent(s) with powers to cover both your financial and health-related needs – similar to a guardianship of the person and property – but a simpler and a much less intrusive option.

To make sure your family has the information and authority they need to handle your affairs if and when necessary, speak with an elder law attorney about preparing life planning documents (a Will, Durable Power of Attorney, Health Care Proxy, Living Will, and Disposition of Remains). These essential documents will make all the difference for you and your family.

If you are interested in preparing a POA, Health Care Proxy, Last Will and Testament, Living Will or Disposition of Remains directive, and you are a senior age 60 or older, the Elder Law Project (ELP) at the City Bar Justice Center can provide free assistance to income-eligible individuals. To inquire about your eligibility, seniors can contact ELP AT 212-382-6658 or click here to apply for help.

This communication is for the general education and knowledge of our readers. Because all legal problems involve their own specific set of facts, this informational resource is not and should not be used as a substitute for independent legal advice. This informational resource also is not intended to create, and its receipt does not constitute, an attorney-client relationship. Please contact competent, independent legal counsel for an assessment of your particular legal concerns, or contact our Legal Hotline (212.626.7383 or https://www.citybarjusticecenter.org/legal-hotline/) to determine whether you qualify for assistance from the City Bar Justice Center.