Power of Attorney

What Is a Power Of Attorney?

A power of attorney (POA) is an authorization to act on someone else's behalf in a legal or business matter. The person authorizing the other to act is the principal, grantor or donor (of the power), and the one authorized to act is the agent or the attorney-in-fact.

In New York, like in many jurisdictions, the power of attorney is an important document that is utilized as part of a person's estate plan.  It can afford protection to a person and his or her family by providing an agent with the power to engage in financial and other transactions for another in situations such as a person's absence due to travel or where a person is incapacitated as a result of an illness or accident.  The power of attorney can insure that important decisions and actions do not have to be delayed or opportunities lost in such event.  Court proceedings to appoint a Guardian can also sometimes be avoided.

However, powers of attorney have been a source of  financial abuse and overreaching.  Persons appointed as agents have fiduciary duties and responsibilities and the selection of an agent should be done only after full consideration of a person's qualifications, integrity and sincerity.

I have represented clients in the preparation and implementation of powers of attorney and developing and implementing a successful estate plan.  I have also assisted many clients in situations where an agent has improperly acted or breached their obligation to act fairly and honestly.

The New York Power of Attorney statutes are contained in the New York General Obligations Law commencing at Section 5-1501. The power of attorney must be signed by the principal and acknowledged by a notary.  It must also be signed and dated by the agent and also acknowledged by a notary.  The typical power is known as a Durable Power of Attorney which means that the power or authority of the agent is not terminated if the principal becomes incapacitated.  The durable nature of the power allows the agent to act for someone who becomes incapacitated and thereby avoids the need for a Guardianship Proceeding regarding the person's property management.  In cases where a person does not have a valid Power of Attorney the Court may need to appoint a property management Guardian under Article 81 of the New York Mental Hygiene Law.  The property management Guardian will have the power to access and transfer an incapacitated person's assets such as bank accounts, brokerage accounts and real estate.

There are numerous types of authority that an agent may be given by the power.  These include the authority to act in real estate transactions, banking transactions, business operating transactions and insurance transactions.

It is always important for a person to consult with a New York Estate Planning Lawyer regarding the appropriate authority and designation of  agents to be provided in the document.  It should also be noted that a power of attorney terminates when a person dies.  Thereafter, only a duly appointed fiduciary such as an Executor or Administrator can act on behalf of the decedent's estate.   A power of attorney can also be revoked prior to death.

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