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What makes a power of attorney durable in New York?

On Behalf of | Mar 7, 2023 | Estate Planning |

Many New York residents include durable powers of attorney in their estate plans to ensure that important medical and financial decisions will be made by a trusted and responsible individual if they become incapacitated or otherwise need help. Drafting these documents provides peace of mind and prepares for a possibility that most of us would prefer not to think about, but the language they contain should be chosen carefully.

Peace of mind

In many states, powers of attorney must specifically state that the designated individual, who may be referred to in the document as an attorney-in-fact or agent, will continue to have authority in the event of incapacity. It is this language that makes a power of attorney durable. If it is omitted, the agent would cease to have the authority to make important decisions if the principal becomes incapacitated. In New York, the opposite is true. Article 5 of the New York General Obligations Law states that all powers of attorney in New York are considered durable unless their language specifically states that they are not.

Springing powers of attorney

When powers of attorney are drafted for estate planning purposes, the authority they grant is often intended to be used only when the principal becomes incapacitated. To prevent the authority from being used immediately, springing powers of attorney that describe the triggering situation are drafted.

Financial decisions

A durable power of attorney could provide you with peace of mind because it will ensure that your bills will be paid, your loved ones will be taken care of and responsible decisions will be made on your behalf if you become incapacitated. You do not have to state that the person you appoint to act as your agent will have authority if you become incapacitated because New York law does not require you to, but you should describe the situation that would trigger or “spring” their authority.

Heath Care Decisions

New York also provides a statutory mechanism to appoint someone to make your health care decisions for you if you cannot – a Health Care Proxy.  Such a proxy can contain specific instructions as to what kind of decision should be made, or can be a general grant of authority.  Many people couple the grant of authority in a health care proxy with a so-called “living will” which states your intentions and instructions should you be unable to communicate them to doctors and hospitals.  Such documents ease the way for difficult decision making at times when people are under stress and need your guidance as to what you want to have done for you.