A well-drafted estate plan should plan for the possibility of your incapacity as well as your eventual death.
If incapacity does strike, someone will need to take over control of your assets as well make important healthcare decisions for you.
Do I Need to Include a Power of Attorney in My Estate Plan?
You likely have some familiarity with the concept of a Power of Attorney (POA). A power of attorney is a legal document that allows you (the “Principal”) to grant another person (the “Agent”) the authority to act on your behalf in legal matters and transactions. A power of attorney can be either durable, springing, or limited. Which one is right for you depends on how much authority you want to give to your Agent and statutory law.
On June 13, 2021, New York enacted a new statutory Power of Attorney referred to as the New York Statutory Short Form, however, if a Power of Attorney was validity executed prior to the enactment of the new law it will be grandfathered in and enforceable. It is a durable power of attorney which means the authority granted to your agent will last beyond any period of disability or incompetence you may suffer.
If you do not wish to grant immediate authority to your agent, you can use a springing power of attorney, which grants the same authority as a durable power of attorney but delays the effective date of the appointment until an event of incapacity or some event or contingency which you designate in the document.
A limited power of attorney is used when the goal is to give someone temporary and limited authority. For example, if you want a friend to have the legal authority to sell your vehicle while you are out of town or want a childcare provider to have the legal authority to make medical decisions for a minor child in your absence.
Regardless of the type of power of attorney that you may create, the powers granted terminate upon your passing and cannot be used to settle matters related to your estate.
Healthcare and Emergency Documents
If you are faced with a period of illness and unable to make healthcare decisions regarding your medical treatment someone else will need to make those decisions for you. That is why it is essential that you execute a health care proxy so that you can decide now who that person will be.
The other type of commonly used health care document is an advance directive, also referred to as a living Will. In some states, a health care proxy and an advance directive will be combined in one document.
An advance directive lets you make highly personal decisions regarding end-of-life care ahead of time. You may have strong feelings regarding the use of life-sustaining and/or life-prolonging medical care. The best way to ensure that your feelings are considered is to execute an advance directive.
Our attorney at Amato Law, PLLC can help you draft and execute powers of attorney, healthcare, and emergency documents to ensure that your wishes are honored. Contact our office today by calling 212-355-5255 or filling out our online contact form.
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