A power of attorney is a legal instrument used to delegate legal authority to another. The person who signs (executes) a power of attorney is called the director. The power of attorney grants legal authority to another person (called an Agent or de facto attorney) to make property, financial and other legal decisions for the Principal. A director can give an agent broad or very limited legal authority.
The power of attorney is often used to assist in case of illness or disability of the principal, or in legal transactions where the principal cannot be present to sign the necessary legal documents. There is a non-durable, durable and emergency power of attorney. A non-durable power of attorney takes effect immediately. It remains in force until it is revoked by the principal, or until the principal becomes mentally incapable or dies.
A non-durable power of attorney is often used for a specific transaction, such as closing the sale of residence or handling the Principal's financial affairs while the Principal is traveling outside the country. A durable power of attorney allows the agent to act on behalf of the director even after the director is not mentally competent or physically capable of making decisions. The permanent power of attorney can be used immediately and is effective until it is revoked by the principal or until the principal's death. A non-durable power of attorney allows the principal to decide in advance who will make important financial and business decisions in the future.
Certainly, you should never give a power of attorney to someone you don't fully trust. And don't let anyone force you to sign a power of attorney. Allowing your agents to act separately can ensure that an agent is always available to act on your behalf. But it can also lead to confusion and disagreement if Agents do not communicate with each other or if one of them believes that the other is not acting in their best interest.
Yes, the agent named in a power of attorney is your representative, not your boss. As long as you have the legal capacity to make decisions, you can instruct your agent to do only the things you want to have done. Yes, the principal may want to authorize transfers or gifts of property for estate planning and other valid purposes. New Abbreviated Powers of Attorney in New York State allow agents to make donations to the principal's family members, if authorized by the principal in the power of attorney.
The principal can also customize a power of attorney to allow the agent to make donations to non-family members. There is no official or governmental monitoring of agents acting in accordance with the power of attorney. That is the responsibility of the director. Therefore, it is important to insist that your agent keep accurate records of all transactions made for you and that they provide you with periodic accounts.
You can also instruct your agent to account to a third party in case you are unable to review the accounting yourself. What can I do if my agent doesn't follow my instructions? You must notify your bank or other financial institution where your agent has used the power of attorney that it has been revoked. No, unless power of attorney is used in a real estate transaction. In that case, they must be files in the county clerk's office.
And when you file an application at the county clerk's office, the power of attorney is a public record open to public inspection. A brief revoking a filed power of attorney must also be filed with the county clerk's office. You must sign (execute) only one copy. However, it is not unusual for a director to sign several original copies.
Banks and financial institutions, for example, generally require an original or certified copy before allowing an agent to conduct business transactions on behalf of the Principal. And banks often provide customers with their own power of attorney forms. Your signature on the power of attorney must be attested by a notary public. There are no special requirements necessary for someone to act as a de facto lawyer, except that the person must not be a minor or otherwise incapacitated.
The best option is someone you trust. Integrity, not financial acumen, is often the most important trait of a potential agent. A permanent power of attorney is an alternative to guardianship only if it is granted before you become mentally incapacitated. To grant a power of attorney, you must have the mental capacity to understand what you are doing.
Once you've lost that capacity, it's too late for you to grant a power of attorney. At that time, the court will have to appoint a guardian or conservator for you, if necessary. A power of attorney is a legal document that allows you to designate a person or persons to represent you before the department. To complete a valid power of attorney, you must be at least 18 years of age and be able to understand what a power of attorney is and understand the consequences of giving an agent the power to act on your behalf, as well as to revoke, amend or modify this authority.
If you are ever asked to act as someone's agent, you should consult with an attorney about the actions you can and cannot take and if there are any precautionary measures you should take to minimize the likelihood that someone will contest your actions. A designated agent in a power of attorney is a fiduciary, with strict standards of honesty, loyalty and openness towards the director. If you own real estate, such as a vacation home, or valuable personal property, such as collectibles, in a second state, you should consult with an attorney to ensure that your power of attorney adequately covers such assets. If you are buying or selling assets and do not want to appear in person to close the transaction, you can take advantage of a power of attorney.
Since a POA can be questioned if an agent needs to invoke it before a bank or financial services company, you should ask a lawyer about previous experience in drafting such powers of attorney. Similarly, an agent who signs documents to buy or sell real estate on your behalf must submit the power of attorney to the title company. A power of attorney can also allow someone you trust to help you with financial matters, such as dealing with creditors, Social Security, insurance, etc. It may be helpful to consult an attorney to make sure that your power of attorney will take care of your needs.
See the Durable Powers of Attorney for Health Care FAQs for more information on using a permanent power of attorney to plan your future health care. Unless otherwise specified, the execution of a new power of attorney does not revoke a previous power of attorney. It could be something very specific, such as giving your lawyer the power to sign a bill of sale for your house while you are traveling around the world. A power of attorney is in force only as long as the principal is alive and can only be promulgated by a director who is mentally competent.
A person who signs a power of attorney without fully understanding what it means, and without considering risks and alternatives, is looking for trouble. You must specify in the power of attorney document which powers you are granting to your agent and when those powers will come into effect. . .
