Power of Attorney

CAUTION: AS OF SEPTEMBER 1, 2009, THERE IS A NEW POWER OF ATTORNEY FORM IN NEW YORK STATE. IF YOU HAVE EXECUTED A THE OLD FORM IT WILL BE ACCEPTED. HOWEVER, WHEN YOU EXECUTE A POWER OF ATTORNEY AFTER SEPTEMBER 1, 2009, YOU WILL HAVE TO USE THE NEW FORM.

What is a Power of Attorney? A Power of Attorney is a legal document used by a competent person to appoint an agent to act on his behalf. The person who grants the power (and signs the Power of Attorney) is known as the Principal. The person who is granted powers is the agent, referred to as the Attorney-in-Fact. The Durable Power of Attorney is an essential tool in caring for the principal and preserving his assets - - especially if he should become disabled or incompetent. The agent is generally given broad latitude to make personal, financial and business decisions.
Is it necessary for each of my parents to have Powers of Attorney? Yes. None of us knows how an unforeseen event might affect our ability to make decisions. It is important that seniors have a plan in place so that a trusted friend or family member can act if there is a period of disability. A Power of Attorney assures that someone selected by your parents will have the legal authority to act in their best interest. If there is a long-term disability or incapacity, having a Durable Power of Attorney can eliminate the need for a court to appoint a guardian.
Is it wise to consult a lawyer when signing a Power of Attorney? Yes. New York State has standard forms Powers of Attorney. However, our office often suggests additional powers that should be added to the standard forms in order that the Power of Attorney can function effectively as part of a disability and estate plan. This is especially important in Medicaid planning when the agent must act to preserve assets and qualify the client for home care and/or nursing home care.
Do my parents have to designate a lawyer as the Attorney-In-Fact? No. The Attorney-in-Fact does not have to be a lawyer. Each of your parents should appoint that person who he most trusts to handle his financial, business and personal affairs. This should be someone who has good financial judgment and who has high personal ethical standards. Because of the broad power given to the Attorney-in-Fact, it is essential that your parents not use this document merely as a convenience (for example, to allow an employee or home health aide to perform banking or other financial affairs for him).
What is the difference between a Health Care Proxy and a Power of Attorney? The Health Care Proxy empowers the health care agent to make decisions affecting medical care when the patient is no longer capable of making those decisions. The Power of Attorney, on the other hand, empowers the Attorney-in-Fact to take actions regarding financial, business and personal matters.
Tips: I regard the Power of Attorney and the Health Care Proxy as essential documents for lifetime planning. I work closely with my clients to assure that their agents have the powers necessary to preserve assets and arrange for care should they become disabled or incompetent. I frequently include powers that are not in the standard form in order to give the agent the ability take additional actions that might become necessary if the principal needs Medicaid or other governmental benefits.