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More Information on Powers of Attorney

Power of Attorney

The Power of Attorney is a document which should be prepared and explained by a qualified attorney. It grants very broad and sweeping powers to another individual, who can then sign your name to various legal and financial documents, thereby binding you as if you had signed the same documents yourself. Because this document is very powerful, it should only be granted to an individual in whom you have a great deal of trust.

There were changes to the law in New York, which became effective in 1994 and 1996, and these changes makes it easier to restrict the scope of the Power of Attorney and to also have it take effect at a later time. The new law allows the Grantor of the Power of Attorney to put their initials in various boxes on the form to indicate their desire to have the Power of Attorney valid with regard to particular transactions only or you may initial one box so as to make the Power of Attorney effective for all transactions.

The Power of Attorney indicates that it is to be a durable Power of Attorney. Durability of the Power means that it survives any future disability. If you are not capable of handling your own affairs, the Power of Attorney would continue to be valid and, therefore, your agent would be able to tend to your affairs in spite of your continuing disability. It is very important for a Power of Attorney to be durable. Most people really only need it if they suffer from some illness or disability, such that it is necessary to use the document so that someone else can transact their business.

New York Law also authorizes the use of what are called Springing Powers of Attorney. This Power of Attorney would take effect only upon the certification by a physician of the principal's inability to handle his or her own affairs by virtue of a disability. This certification must be attached to the document at such time as the Power of Attorney is filed in the County Clerk's Office or used for any transactions.

You may also grant Power of Attorney to more than one individual. You may choose to allow the individuals to the independently exercise the powers or you may require that both parties must sign to exercise the powers together on all transactions.

A durable Power of Attorney is a very useful document and should part of any estate plan. Naturally, each of us hopes that we are always in a position that we can handle our own affairs, however, if by some unforeseen illness or accident we are rendered incapable of adequately handling our legal and financial matters, a Power of Attorney is invaluable. In the absence of such a document, it would be necessary for a spouse or family member to commence a guardianship proceeding, which requires the action of the Supreme Court. This process would entail unnecessary legal expenses and Court filing fees. It is expensive and time-consuming, and most significantly usually unnecessary if one has executed a valid durable Power of Attorney.

You should consult with a qualified Elder Law Attorney to have this document prepared and executed such that you can be assured that it is done properly. The document can then be deposited with your attorney for safekeeping to be produced only when necessary. A Power of Attorney should not be put in your safe deposit box, since your agent would not be able to gain access to the box without it and therefore the document would be useless.