New York Power of Attorney Dynamics
The individual must be mentally sound and have full use of their faculties when selecting a power of attorney. Other parties may be involved, but they do not make the decision. The Principal is the one who has to make a decision. This selection works in order to appoint an individual who an aging person can trust with their legal decisions.
Put your trust in an experienced power of attorney lawyer who will carry out your legal decisions. A qualified attorney will understand New York power of attorney dynamics, how they work, and will be able to carry out your decisions without overstepping boundaries. Contact a lawyer today.
Power of Attorney Explained
A person with power of attorney cannot override the decisions of an officer. They cannot do anything that the principal could not do. They can only make decisions in place of the principal, as the principal would, or could if they were able.
The attorney cannot override anyone. Their purpose is not to override anything, they are supposed to do things for the principal. Whatever the Principal could have done themselves, the agent can do for the Principal. That is the concept, stepping into the principal’s shoes. If the principal could have overwritten something done by another person, then the agent can.
Power of attorney rules are not necessarily unique, but they are a bit different from other states. Other states allow a person to give a power of attorney that includes healthcare decisions; New York State does not. There is a separate document for that.
The power of attorney rules have to follow exactly what the Statute says, and the signatures must be acknowledged by a notary public. When granting power of attorney, which includes the giving of gifts, not only must the principal and agent signatures be acknowledged by a notary public, but there must be two witnesses in addition to a notary public, although the notary can be one of the witnesses.
Role of the Lawyer
To understand New York power of attorney dynamics, it is important to know that the lawyer in a power of attorney designation does not have any authority over the decisions that are made, except to indicate where somebody has to sign their name. Attorneys cannot tell the principal that they can or cannot appoint their child, or their friend, or whatever, but the attorney can give the Principal guidance as to who should be selected.
A lawyer usually will do the power of attorney and, in many cases, will never speak about it to the principal again. Unless issues come up then, the lawyer will be called and hopefully answer the questions of the principal and/or the agent.
Importance of Assigning Power of Attorney
If an individual becomes incapacitated and does not have a well drafted durable power of attorney, in all likelihood, it will be necessary to have a guardian appointed. The appointment of a guardian for such an individual can be a difficult, expensive and time consuming process, usually requiring a court trial or hearing. Therefore existence of a durable power of attorney will go a long way toward obviating the need for the appointment of a guardian.
Durable Power of Attorney
A durable power of attorney means that if the principal grants a power of attorney and then becomes incompetent through dementia or by the physical inability to do things, it is durable. The power of attorney and related New York power of attorney dynamics, stay in effect even though the person does not have the capacity to make decisions. If a person does not have a durable power of attorney and the Principal becomes incapacitated, mentally or otherwise (usually, mentally), then the power of attorney fails. But, if it is a durable power of attorney, then it continues on even though the person is incapacitated by dementia or otherwise.
Terminating Power of Attorney
The Principal or the Court can terminate the power of attorney. If it is not a durable power of attorney, the power of attorney will terminate upon the incapacity of the Principal and also on death. A durable power of attorney will terminate upon death.
The difference is that if the Principal has become mentally incapacitated, they are not going to be able to revoke it. However, the court could do it. If the principal has designated a specific time for termination, it is up to them to determine when that should happen. If they want the power of attorney to last for three years while they are out of the country, for example, they can do that.