What’s A Power of Attorney?

Filed Under Per Diem Legal Services · Tagged:  

You are sick with a chronic health condition. You have been told by a number of people that you should create a Power of Attorney. But you have no idea what a Power of Attorney is. A Power of Attorney is a document authorizing another person to act on your behalf. The person who actually signs the power of attorney is called the Principal.  The one who gets the legal authority over the other person is called the Agent or Attorney-in-Fact.  The agent can make property, financial and other legal decisions on behalf of the principal. In order for it to be valid, you must be mentally competent when signing Power of Attorney.

The three types of power of attorney are nondurable, durable and springing.  The differences are as follows:

  • “Nondurable” is used often for transactions like the closing on a home or handling the Principal’s financial affairs, accounts, etc. while the Principal is traveling outside the country and isn’t able to.
  • “Durable” gives power to the Agent to act on the Principal’s behalf even after the Principal is no longer mentally capable or physically able to make decisions for themselves.  This power of attorney is in effect until it’s taken away by the Principal or until the death of the Principal.
  • “Springing” power of attorney comes into effect later in time, not immediately.  It “spring up” after a certain event happens, for example, if the Principal can longer act on their own will or if they have some kind of mental issue that hinders their decisions making. 

How do you get power of attorney now that you know what it is?  First of all, as far as New York goes, you need to have it in writing.  You don’t have to write it yourself, but it has to be written.  The best suggestion would be a lawyer who specializes in writing them, so that way you are sure you are getting proper documentation.

Next, you must name the parties who are involved (Principal and Agent).  You must write down all the names of those involved.  Then, it has to be dated and signed.  Both the Principal and Agent must sign the document.  You must have permission by the Principal to put their signature; it cannot be forged or used without their knowledge, since this is illegal and you will end up in jail. 

The last few things that need to be done are the terms of durability and the list of powers.  New York law assumes that all powers are durable unless you state that they aren’t. So if this isn’t what you want, and you want the powers to terminate when the Principal is incapacitated, then you must write that in.  The powers listed are either limited or general, which you also need to specify in the power of attorney.

Are you in need of an attorney to set up your power of attorney in or around Orange County, NY?  Give our law offices a call today.  We serve the following areas:  Hudson Valley, NY including Orange County, Sullivan County, Dutchess County, and Ulster County.