Durable Power of Attorney

Understanding Durable Power Of Attorney Documents

Durable power of attorney documents are legal documents by which a person authorizes another to act on the person’s behalf. Typically, the durable power of attorney documents relate to financial or business transactions such as real estate or banking transactions.  The durable power of attorney documents are provided by New York statutes and the rules regarding the creation and use of the power must be followed for the power to be effective.

The power of attorney can be broad in scope, giving an agent the ability to make any and all decisions, or you can limit the agent’s authority by specifying the types of decisions the agent can make. Durable means that the power of attorney remains in effect when, and if, you become incapacitated.  Also, the selection of the agent or attorney-in-fact to carry out or utilize the power is important.  The agent must be trustworthy so that the use of the power is not abused.

Choosing an agent to act for you in a power of attorney is important.  The utmost consideration is that you have full faith and trust in the agent.  Typically, an agent is a close family relative such as a spouse or child.  It is important to remember that the agent using a power of attorney will be acting when the principal may be incapacitated and cannot override the agent's decision.  Since this is the intent of the durable power it is also essential that the agent recognize and accept his duties.  When a person names someone to act under the power it makes sense to ask that person first if he is willing to accept the responsibility. In the recently revised New York Statutory Power form, the agent must also sign the power and have his signature notarized and acknowledge that he understands that he is accepting the obligations and tasks assigned.

There are numerous instances in Court where a person appointed as an agent under a power abuses his authority.  The agent acting under a Power of Attorney is viewed as having a confidential relationship with the creator.  In view of this confidential relationship, any transfers by the agent of the creator's property to the agent will be viewed by the Courts as improper.  Problems arise when agents act without any oversight.  This is common with older individuals who give agents powers. In many instances there are no other family members or friends around to have oversight and to prevent the abuse of the power and the victimization of the creator.  When these situations arise, the result is Guardianship litigation or Estate litigation.

It is advisable to contact a lawyer to prepare and implement your durable power of attorney. A lawyer should make sure that your document meets your state's requirements and that the powers you wish to give your agent are provided for and are legally effective. I provide my clients with legal representation in areas of law for estate planning, guardianship, and powers of attorney. I have many years of experience and I will assist you with questions you have regarding a durable power of attorney.

To receive legal consultation concerning a durable power of attorney,  you can contact me by phone at (212) 355-2575 or e-mail