A durable power of attorney (POA) is one of the most important tools used in incapacity planning. A durable power of attorney means that you have designated someone as your agent, and your grant of authority to that agent will continue to stay in effect even when you are incapacitated.
Understanding how a power of attorney works and what it means is very important for making advanced plans to secure your future. Mark S. Eghrari & Associates PLLC can help.
Give us a call at (631) 265-0599 to find out more about what a power of attorney means, why you want your power of attorney to be durable, and how we can help you to create your power of attorney.
What Does Durable Mean in a Durable Power of Attorney?
When you create a power of attorney, you give an agent or attorney in fact the legal power to act on your behalf. This means that the agent can enter into legally binding contracts on your behalf, manage and even sell your property for you, and otherwise take actions on your behalf. If the agent acts for you, it is the equivalent of you personally taking an action.
In New York, you can create a power of attorney using statutory short forms. Essentially, this means that, by statute, forms were created which New Yorkers can use to make a legally valid grant of authority. When you fill out the forms correctly and follow instructions, the form will give power to your agent.
Rockland County Clerk has a sample statutory short form available which New Yorkers can use to create a power of attorney or can review to find out more about what is involved with power of attorney creation. One of the things which the statutory short form says is “This POWER OF ATTORNEY shall not be affected by my subsequent incapacity unless I have stated otherwise below, under “Modifications.”
This clause essentially means that if you use the standard statutory short form and do not specifically choose to opt out, the power of attorney you create is a durable one. A power of attorney is durable if it stays in effect after something happens to incapacitate you.
Different states have different rules for exactly what someone has to do to create a durable power of attorney. Sometimes, the law says that a power of attorney is considered durable by default unless the grant of authority states otherwise. In other jurisdictions, the law may require the use of specific language or clear intent to make the power of attorney durable.
Regardless of what the requirements are of creating a durable power of attorney, the purpose of making the POA durable is always the same: you want it to be durable because you don’t want your agent to lose authority upon your incapacity. If you have created your power of attorney specifically to allow for asset-management and decision-making if something happens to you, you would lose this benefit if your power of attorney was not a durable one.
Why You Need a Durable Power of Attorney
Incapacity planning, including creating a durable power of attorney, is one of the most important things which everyone should do. If you do not have a plan and something tragic happens that leaves you incapacitated, you could find yourself with a guardian appointed by the court who isn’t someone you would have wanted to make decisions on your behalf. Your family could also be forced to spend money and cope with the complexity of guardianship proceedings.
Creating a durable power of attorney eliminates these issues. Your agent can immediately step in and start acting for you if the unthinkable happens and you get sick or hurt and are left incapacitated. Your agent can act temporarily on your behalf if you recover and begin acting on your own again, or could permanently be your agent for the rest of your life if you remain incapacitated.
Getting Help with a Durable Power of Attorney
You need to make sure you understand how a durable power of attorney works, why you need one, and how to create one. It is a common misconception that incapacity planning is only for seniors. Unfortunately, the reality is incapacity can happen any time. You don’t want to be left unprepared, so contract Mark S. Eghrari & Associates PLLC today to find out how we can help. Give us a call at (631) 265-0599 or contact us online to speak with a member of our legal team to learn more.
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