Power of Attorney, Living Will & Health Care Proxy

Your comprehensive estate plan should include a New York power of attorney.  This document appoints a trusted individual as your “agent” whom you are bestowing with authority to act in your place and stead with respect to your finances and real property, among other items. The power of attorney is often referred to as a “durable power of attorney” as it is in effect the day the principal signs it and remains in effect up to and including a time when you, the principal, may no longer be competent to make financial decisions.  In contrast, your Living Will and Health Care Proxy does not become effective until such time you are not able to make health care decisions on your own behalf, and your agent will make them for you, in accordance with your wishes.  It is crucial to have these documents in place before any incapacity which may also preclude the need to have guardians appointed by the courts for your person or property.

General Information

  • A power of attorney (“POA”) is a legal document that grants an individual, referred to as the agent or attorney-in-fact, the authority to act on behalf of another person, known as the principal. The extent of the authority granted to your agent can vary depending on the specific powers you wish to bestow upon the agent, including personalized modifications that may be built into the POA pursuant to your preferences as well as gifting powers. This document wields great powers and the individuals you choose to entrust with your affairs must act in service of their fiduciary obligations. As this arena presents opportunity for abuse, particularly for those who are elderly and vulnerable, it is important to discuss all aspects of this document during a consultation.

  • While you may find “do it yourself” templates online to create a power of attorney, there are many technicalities that must be adhered to in order to achieve a legally enforceable power of attorney. Financial institutions will scrutinize your power of attorney and any errors or ambiguities will result in a refusal of the power of attorney. While there is a process in place for review when a third party unreasonably refuses to accept a valid power of attorney, this will cost time and money, with the “valid” element being a key part of the analysis. You should discuss the nuances of this powerful document with Kerry Dinneen during your initial consult to avoid such unnecessary delays and uncertainty.

  • If you execute your power of attorney in a timely manner, appointing an agent who will act in your best interests with respect to your financial and real property matters, this will save the time and expense of a loved one later having to bring a guardianship proceeding in order to make such decisions on your behalf when you are no longer able to do so yourself.  Notably, the power of attorney serves this important purpose while you are living – an agent’s authority to act pursuant to the POA ends at the end of the principal’s life, at which time letters testamentary, for instance, become the operative vehicle by which your assets are managed and distributed. 

  • Granting an agent wide-ranging authority under your POA is a significant decision. It merits great consideration given the agent’s ability to, for instance, sign checks on your behalf manage your accounts and investments, make withdrawals, manage tax returns and filings, and buy and sell real estate on your behalf.  An agent may undertake such actions unless a POA has been properly revoked. Schedule a consult with Kerry Dinneen to learn more about the advantages of a POA naming a trustworthy agent, or co-agents, who will assist you with managing your financial affairs.

 FAQs

  • A Power of Attorney grants someone the legal authority to manage your financial and legal affairs, while a Living Will and Healthcare Proxy outlines your healthcare preferences in the event a time comes when you are unable to make those decisions for yourself. These documents each play a unique role in ensuring your wishes are followed.

  • A Living Will & Health Care Proxy ensures your healthcare preferences are documented and made known to those you appoint to represent those wishes when you are no longer able to do so. This may occur under temporary circumstances in an emergency, or in the even of a terminal illness. You may also indicate your wishes as to being an organ donor in this document. At base, this document will bring clarity and peace of mind, preventing confusion or conflict among loved ones during critical moments.

  • A New York Durable Power of Attorney takes effect when it is properly executed before two witnesses and a notary, and the appointed agent(s) properly executes the POA, signifying his or her acceptance of the role and fiduciary duties.  The POA will remain in effect until the principal’s death if not revoked during the principal’s lifetime. The POA is designed to always provide flexibility in the management of your financial affairs and in the face of unforeseen circumstances.

  • Choosing the right person is crucial. Select someone trustworthy, responsible, and capable of making decisions in your best interest. For a Power of Attorney, prioritize someone with strong financial acumen. For a Health Care Proxy, choose someone who understands your healthcare wishes and can act under pressure. Kerry Dinneen can guide you through these decisions to ensure your plan is comprehensive and effective.

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