Creating a durable power of attorney (POA) is a key part of making an incapacity plan. You must make certain you have a durable power of attorney in place if you want to control who makes decisions on your behalf when you are not able to act on your own any longer due to an injury or an illness. 
Mark S. Eghrari & Associates PLLC can help you to make a durable power of attorney that is legally enforceable and that provides protection both for you and for your loved ones. With a durable POA, your family does not have to initiate guardianship proceedings if something happens to you, and there is no confusion regarding who should have the authority to make your decisions and manage your assets and affairs. Our legal team will work with you to ensure your power of attorney is enforceable and serves the intended purpose.
What Do You Need to Make a Durable Power of Attorney?
To create a durable power of attorney in New York, you must use a statutory short form. The New York Bar Association explains that much of “the specific language of the statutory short form” cannot be changed. However, there areas of the form that you are permitted to modify so the grant of authority will specifically suit your needs.
You should work with an experienced attorney to make certain you select the correct form to use for power of attorney creation. According to New York Code section 5-1501A, a “power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal.” This means that when you create you power of attorney, as long as you do it properly, the person you have chosen as you agent is going to have decision-making authority on your behalf even when you are incapacitated.
Since most people specifically create a power of attorney specifically in order to have someone making decisions for them when they cannot, it is a good thing that New York defaults to a durable power of attorney. In some states, a power of attorney is considered not to be durable and will end at incapacity (right when it is needed) unless specific instructions are otherwise provided.
In addition to selecting and completing the correct Statutory Short Form to create a durable power of attorney, you also must make a careful decision on exactly who is going to be your agent. The person who you select and name when creating a power of attorney could end up making some of your life’s most important decisions for you. You want to think carefully about who you can count on to express and act upon your preferences when you no longer can.
Why is it Important Your Power of Attorney is Durable?
It is important to create a power of attorney because of the need to maintain autonomy as much as possible even after incapacity. It is also a kindness to the people you love because you take away their fear and uncertainty over who should be in charge of your decision-making if something happens to you.
When you create a power of attorney to provide protection for yourself and the people you love, you want to make certain it is durable, which should not be a problem if you create it in New York using the proper forms. Unfortunately, when a power of attorney is made that is not durable and the POA creator becomes incapacitated, the family is in the same position as if there was no power of attorney at all. This means the family is forced into court. The incapacitated person is left without his chosen agent to manage his affairs, which puts both assets and autonomy at risk.
Getting Help from A Long Island Incapacity Planning Lawyer
Mark S. Eghrari & Associates PLLC has worked with many clients in and around the Long Island area to create a durable power of attorney that is enforceable and that can provide appropriate protection for the incapacitated individual, as well as his family and assets. A durable POA is one of many components of a comprehensive incapacity plan that protects against undesirable outcomes in case of serious injury or illness.
To find out more about what a durable power of attorney is, why you need one, and how you can create own, join us for a free seminar. You can also give us a call at (631) 265-0599 or contact us online to get personalized one-on-one help with power of attorney creation. Call today to get started so you will have the confidence of having a plan in place in case the worst occurs.
Mark S. Eghrari, Estate Planning Attorney
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