Guardianship Blog

Estate Planning Essentials: Power of Attorney in NY

Almost everyone considers doing a Will or Trust at some time in their lives, usually when something significant happens, i.e., birth of a child, planning a long trip or after divorce. Arguably, the next most important part of your estate plan should be your power of attorney.

What is a power of attorney?

A power of attorney (POA) is a legal document that allows another person, your “agent”, to act on your behalf with regard to your financial affairs. It allows you to choose which particular powers you give to your agent and which you do not.

Who should I pick as my agent?

People generally choose their spouse or a trusted family member or friend. You may also choose a successor agent if your first agent is unavailable. You may also pick more than one agent to act at one time.  If you do pick more than one, you must choose if they can act independently or not.

Why is having a POA important?

If your POA is “durable”, it will allow your agent to handle your affairs in the event you are no longer able to do so due to accident, illness, or other cause.  If you become incapacitated and don’t have a POA, someone may need to be appointed as a guardian of your property by a court.  The guardianship proceeding could be complex and contentious, and it may result in the appointment of someone you would not prefer as your guardian.

Can I revoke my POA?

POAs are revocable at any time. You should seek legal assistance to make your revocation effective, because a financial institution may still honor your POA if they haven’t received proper notice of its revocation.

Does my agent have to sign the POA?

Yes, for the agent to have the ability to act, they must also sign the POA. The agent’s signature is an acknowledgment that they understand that they have a fiduciary duty to you and must act in your best interest.  It also means they understand they will be legally liable in the event they violate their fiduciary duty.

I have a POA from ten years agoâ – is it still valid?

As long as the POA was properly executed on a valid form at the time, the POA is still valid today. You should consider doing a new POA, however, because the statutory form changed in September 2010, and the new form is most recognized by financial institutions.

What if I don’t have a POA?

If you don’t have a POA, you should consider seeking the services of an experienced estate planning attorney to draft a POA for you.  The attorney can also oversee the execution of the POA to ensure the document is signed properly by all necessary parties and that you’ve made choices in the POA which are consistent with your overall estate plan.

Ultimately, the importance of an estate plan cannot be overemphasized, which makes having the advice and guidance of experienced estate administration attorneys invaluable. At O’Connell and Aronowitz, our New York estate administration attorneys represent clients in Albany, Latham, Plattsburgh, Saratoga, and throughout upstate New York.

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