Using the Durable Power of Attorney

The durable power of attorney is one of the most powerful planning tools that an attorney can recommend to a client, not only for estate planning, but also for Medicaid and other public benefits planning. When a person (the principal) signs a power of attorney, he gives another person (the agent) the power to act in his place and on his behalf in managing his assets and affairs. The agent’s powers may be broad and sweeping so as to include almost any act which the principal might have performed himself.

On September 1, 2009, a new power-of-attorney law went into effect in New York State. All powers of attorney signed prior to that date remain effective. The new law eliminates all gift-giving authority of the agent except to continue the principal’s history of gift-giving, and then not to exceed $500 per recipient. Other gift-giving can only be accomplished through an additional document, the Statutory Major Gifts Rider. Using this supplemental form, the principal “may authorize major gift transactions and other transfers.” The form requires that it be acknowledged and witnessed by two disinterested witnesses.

A power of attorney can be either a “general” power of attorney, where the agent may perform almost any act the principal might have performed himself regarding the financial management of his affairs, or a “limited” power of attorney, where the agent has one or more specific powers, such as the power to sell a particular property to a particular purchaser at a particular time. A single principal may name one or more agents who can be authorized to act together or separately (alone without the signature of the other agent or agents).

In order to sign a power of attorney, the principal must have “capacity,” which is defined by the statute as the “ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney....”

Every power of attorney executed on or after 9/1/09, is considered “durable” unless the document expressly states otherwise. That is, the power of attorney will endure the principal’s incapacity unless it provides that it is a non-durable power of attorney to be terminated upon incapacity.

The great advantage of a durable power of attorney is that it remains in effect after the principal’s incapacity. The agent, therefore, can act immediately upon the principal’s incapacity to manage the principal’s assets or to take various measures without initiating costly and time-consuming alternatives such as guardianships or trusts.

The power of attorney for asset management in the case of serious illness or disability is especially useful in situations where the person’s assets may be modest and, accordingly, do not warrant the expense associated with other planning alternatives.

In a few states, the principal is allowed to delegate to the agent in the durable power of attorney various health-care powers in addition to control over financial matters. In New York State; however, a health-care proxy must be a separate document from  a power of attorney.

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