Do You Know Your Power of Attorney Rights?
Vincent Russo, JD, LLM, CELA | March 6th, 2009Many seniors have Powers of Attorney, but do you have the right one? This is a very important question because no one has the right to make financial decisions for you, unless you have legally appointed a person with the authority to act for you. The best way to give that legal authority is by executing a Comprehensive Durable Power of Attorney.
STATUTORY FORM
It is critical that your Power of Attorney is a NEW YORK STATUTORY FORM: DURABLE GENERAL POWER OF ATTORNEY. This means that the document must be followed by banks and financial institutions in New York. You do not want to find out later that the Bank will not accept your Durable Power of Attorney because it is not the New York Statutory Form.
DURABLE
One of the most important aspects of a Power of Attorney is to make sure that it is Durable. A General Power of Attorney is not effective if you should become incapacitated. That is exactly the time you want it to be effective. A Durable Power of Attorney will continue to be valid even if you become mentally incapacitated. Certain language must be included in the document for it to be Durable.
CONTINGENT AGENTS
You should not only appoint an agent (the person or persons that will act for you), but also successor agents, just in case the person you appointed first is unable or is unavailable to act for you.
POWER PROVISIONS
It is imperative that you have comprehensive power provisions and not the “fill in the blanks” statutory form of Durable Power of Attorney. You must ensure that no matter what happens in the future, your agent can make all kinds of financial decisions for you. For example, the standard statutory form does not provide for Medicaid Planning or Estate Planning to minimize estate taxes. The standard statutory form falls short.
INTENT TO RETURN HOME
Does your Durable Power of Attorney include a provision expressing your n Intent to Return Home if you are in a hospital and/or a nursing home? If you can prove Intent to Return Home, then your home will not be counted for purposes of Medicaid eligibility for nursing home care.
STATEMENT AS TO GUARDIANSHIP
Does your Durable Power of Attorney have a statement as to whom you wish to appoint as guardian? This can be helpful in the event a family member challenges your Durable Power of Attorney in Guardianship court.
REAL PROPERTY IN OTHER STATES
Does your Durable Power of Attorney meet the requirements of state law where you own real property, such as Florida? There may be certain requirements of the other state which must be included in your New York Durable Power of Attorney. You do not want to be caught short at a real estate closing because you do not have the right Durable Power of Attorney.
MAKE SURE YOU HAVE THE RIGHT DURABLE POWER OF ATTORNEY
The Durable Power of Attorney is the most important legal document that you can have. It ensures that you have taken steps to allow for a person you trust to make financial decisions for you and to protect your assets in the future. You do not want an inferior, ineffective Power of Attorney. If you have any doubts regarding your document, then you should consult an experienced elder law attorney. And if you do not have one, please take steps now to protect yourself by having an elder law attorney prepare a Comprehensive Durable Power of Attorney for you to execute.
Vincent J Russo, J.D., LL.M., CELA is the Managing Shareholder of Long Island’s Signature Elder Law, Special Needs and Estate Planning Law Firm with offices located in Westbury, Lido Beach, Woodbury and Islandia, New York. Mr. Russo is a noted author, lecturer and advocate for seniors and people with special needs. He has co-authored “New York Elder Law Practice” which is the handbook for attorneys practicing elder law in New York.
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