When You Should Have a New York Durable Power of Attorney

A power of attorney (“PoA”) is a special form that permits another person (the “agent” or “attorney-in-fact”) to act on behalf of you (the “principal”).  Any person over age 18 and competent can sign a PoA.

The reasons you would want a PoA in place are many and include the following:

• In the case of your incapacity, your agent can administer your personal, business, and financial affairs;
• When you are out of communication and “off the grid,” your agent can take care of your financial affairs.

Give careful consideration to whether you want to sign a PoA, and to the person you select as your agent. Choose someone you trust to stand in your shoes and take whatever actions you could take (i.e., empty and close bank accounts or sell property).

You can name one or more individuals to act as your agent.

• You can provide that the agents act separately or require them to act together.
• You can designate successor or alternate agents, should the first person or persons you choose be unable to act.

You can give the agent as much or as little authority as you would like.  Your agent can handle real estate, banking, insurance, tax, and/or other transactions.

A PoA becomes effective immediately when it is signed and acknowledged before a notary public by the principal and the agent.

• Since it is such a powerful grant of authority, you should keep the fully executed PoA in a safe and secure place.
• Your agent should be able to access the PoA when you want the agent to have it.
• You should not give the PoA to the agent until such time as you are ready for the agent to act on your behalf.

While there is a section in the PoA form for the appointment of another individual to act as monitor of the agent and to oversee what steps and transactions the agent takes on your behalf, in practice a monitor is rarely chosen.  It is important to choose an honest and reliable agent who will not require supervision and oversight.

In order to enable an agent to make gifts over $500, an additional special form called a Statutory Gifts Rider must also be executed. This document must be signed by you before a notary and two witnesses.

You may revoke the PoA at any time in the manner specifically prescribed by law.

Your agent is entitled to be reimbursed for the reasonable expenses the agent incurs on your behalf.  You can also give your agent compensation for acting on your behalf.

If you execute a new PoA, any prior PoA will remain effective unless it is specifically revoked.

The PoA lasts only as long as you are living; it automatically terminates at your death.

The City Bar Justice Center’s Planning and Estates Law Project (PELP) has helped more than 300 low-income New Yorkers since 2013 with important legal issues and their estate planning documents, including PoA’s.

To contact The Planning & Estates Law Project, call 212-382-6756

Look for our upcoming blog posts on the following topics: Health care proxies, directives regarding organ donation, cremation, and disposition of remains