Power of Attorney

By: Jeffrey L. Drimer, Esq.

Most of the problems your attorney helps you deal with are reactive in nature. Something happens to you, and you want to act in response. You might do something that necessitates a legal response. There is, however, one very important area of the law where you and your attorney can be pro-active. You can make plans for a time when you, and your spouse are ill or disabled or one of you passes away.

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There are many attorneys that specialize in Estate Planning and Trusts which you can speak to about your plans for your spouse and your children and your assets. You can execute a Will, a Health Care Proxy and a Living will. You can create a Trust. That is being pro-active.

This article is intended to focus specifically on what is now becoming one of the most important legal documents you may ever execute to protect yourself and your family, a Power of Attorney.

A Power of Attorney is a legal document that is used to delegate legal authority to another person. The person to whom you give this legal authority is then empowered to make property, financial and legal decisions for you. The question you should be asking at this point is “Why would I want to do this”? I am young and healthy. I would only need a Power of Attorney if something bad happens. The answer is simple and worthy of your consideration. When something bad happens, it is often too late. A Power of Attorney can still be used in the event of your disability or illness. It can also be used if you are not available to sign necessary legal documents. It is good planning.

The choice you will be given when you sign a Power of Attorney is between a Non-Durable Power of Attorney and a Durable Power of Attorney. A Non-Durable Power of Attorney is usually used for a single transaction like a Real Estate closing or the filing of a Bankruptcy or executing documents related to an Estate. A Non-Durable Power of Attorney is usually used immediately and revoked immediately it is used but is effective until specifically revoked or until the maker of the Power of Attorney dies.

A Durable Power of Attorney is used to set up a procedure for the management of one’s financial affairs in the event of your incompetence, disability or illness. This is most helpful in avoiding the time and expense of having a Guardian appointed by the Court in the event of incompetence or disability. The simple act of doing a Durable Power of Attorney is an insurance policy that everyone should have.

A person who has your Durable Power of Attorney could conceivably buy or sell real estate, do your banking, handle your investments, participate in litigation on your behalf and deal with matters related to your taxes and your retirement. Your children and your spouse will be thankful for your foresight.

You should be clear that a Durable Power of Attorney cannot be used by your designated agent to make medical decisions for you. In New York State, you should prepare a Health Care Proxy to prepare for accident, illness or disability. Your attorney can prepare the proper form for you. The proper document is also available on-line for you to consider.

As for who you should appoint as your agent in your Durable Power of Attorney you should look to your most trusted family members, a friend or a professional person with whom you have had a continuing relationship. Trust and Honesty are the key elements to be considered in this choice.
Do not wait for trouble. Prepare for it. You and your family will be glad you did.

If you need assistance, contact Mr. Drimer at 315-472-4331.