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Power of Attorney, New York

I see many Powers of Attorney done by people without legal advice, and they are not properly signed and initialled to be valid. The most notable mistake is that a checkmark is placed next to the power, instead of the person giving the power placing their initials within the parentheses next to the power. Another mistake I recently encountered was that the wrong form was used. Someone downloaded a form from the internet without reading it carefully, and it was a “Springing Power of Attorney” meaning that it came into effect when the person became disabled, or some other specified event. The form indicated that a doctor would need to certify the person mentally incompetent, and no event was specified (in addition to the fact that this Power Attorney also had checkmarks instead of initials next to the powers). What was needed was a “Durable Power of Attorney”, meaning that it was effective immediately, and continued in effect after the person’s disability, or the Springing Power should have specified that it would come into effect if the person was out of the country, which was the case. It is difficult to obtain a new Power of Attorney (or any other document that needs to be notarized) when someone is out of the country, because the person may now have to get it signed at an American Embassy.

A Power of Attorney may seem like an easy document to either download from the internet, or purchase from a stationery store, and simply fill it out and have it signed and notarized, all without an attorney’s assistance or advice. However, the person signing should know exactly what it is they are doing, and the document should be read carefully and the instructions followed to the letter. Advice from an attorney as to the implications of the Power of Attorney would be a good idea. Once someone has a Power of Attorney, depending upon the powers given, they can handle matters, such as the buying and selling of real estate, banking, tax returns, personal matters, signing contracts, etc. in the same exact manner as the person giving the power, without their further permission in writing. Inherent in a Power of Attorney is that the person given the powers is acting with the consent and knowledge or the person giving the power, or in their best interest if they are unable to make their own decisions. A Power of Attorney should only be given to someone who can be trusted, and has been known to the person giving the power for a long time. It is best to give it to a spouse, relative or caretaker. A Power of Attorney can specify that one or more persons must act in concert, or that it expires at a specified date. A standard statutory short form may be used, or a specific Power of Attorney may be drawn by an attorney.

A Power of Attorney is often used to give a spouse or other relative the ability to handle one’s finances if they become mentally incapacitated, and unable to handle their financial affairs. It can also be used if someone is out of town, and needs to have someone attend a real estate closing or other matter that requires their signature. A fiduciary, such as an executor or trustee, may not delegate his or her duties by way of Power of Attorney, and must sign all documents directly.

A Power of Attorney can be drawn, along with a Health Care Proxy and Will or Trust, to complete the documents a person should have to protect themselves and their loved ones when they cannot do so themselves.

Cynthia M. Burke, http://www.nyrealtylaw.com