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by Alexander Bader, Esq.

“Is there a valid Power of Attorney in place?” Should you, a family member, or a dear friend be faced with a health-related crisis, the answer to this question may be so very crucial. When someone contacts our office in the midst of facing such a crisis in regards to a loved one, a valid Power of Attorney with proper language opens doors to critical, timely assistance.  In turn, during office consultations and educational seminars, we commonly advise clients that there is no more important document for an adult to have in place than a valid Power of Attorney.

So, what is a Power of Attorney?  It is a legal document (sometimes referred to as an “advance directive”) whereby the individual (principal) grants authority to a person (agent) or persons (agents) to represent the principal in financial, business and personal transactions. The Power of Attorney is only in effect during the lifetime of the principal, and it can be revoked by the principal at any time.  The principal may choose to limit the agents’ authority to specific transactions, or may give the agents broad authority for as many transactions as allowed by law.  Should the principal become temporarily incapacitated, or afflicted with a chronic ailment such that the principal cannot handle his or her affairs, the agent on the Power of Attorney could, for example, make sure bills are paid, rents are collected, and even assist in applying for Medicaid on behalf of the principal in appropriate circumstances.

Keep in mind, simply being one’s spouse or one’s child DOES NOT give you authority to “stand in their shoes” and handle your loved one’s affairs. In addition, should someone without a proper Power of Attorney be facing a chronic illness and need assistance in handling financial matters, for an individual to be granted the authority to provide such assistance a legal proceeding must be initiated in which the individual petitions court to be appointed Guardian for the impaired person.  Such a proceeding may take months and be costly in legal fees.  There would be no need for this if the person requiring the assistance had executed a Power of Attorney.

The law governing a proper Power of Attorney in New York State was modified in late 2009, and again in 2010. In order to be valid, a Power of Attorney document signed since the new law went into effect must have particular language governed by statute.  Additional requirements in New York include that the document must be notarized and witnessed by two people (the notary and witnesses cannot be the agents).  Since the statutory requirements for a proper Power of Attorney document are more complicated than in the past, it is recommended that it be drafted by and signed in the presence of an attorney experienced with these documents.

The contents of this article are in no way intended to be legal advice, are provided for educational and informational purposes only, and are directed only to those domiciled in the State of New York. Please feel free to call our office if you feel we can be of service to you in any manner.  Our attorneys can be reached at Brady & Marshak, LLP, Attorneys at Law, (718) 738-8500.

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