Download Free Special Report for Seniors, the Disabled, and Their Families

The Durable Power of Attorney

Share


17. Not just any Power of Attorney. A Durable Power of Attorney is a legal document that allows a trusted person to make decisions for you, even if you lose mental capacity. While many people already have a Power of Attorney, most are unaware of the fact that their particular version is ineffectual for Elder Law planning purposes.

  • In this video David Cutner explains the Durable Power of Attorney Document and how essential it is to an effective Elder Law Planning strategy.

    Click here to watch video!

Effective September 1, 2009, New York State implemented a new law that dramatically changed the form, content and procedures for executing a Durable Power of Attorney. The new document is lengthy and complicated. Lamson & Cutner strongly recommends you seek legal advice from an experienced Elder Law firm before signing one. Even a "simple" form available at your bank, or obtained from a stationery store or the Internet, could affect your rights in unexpected and undesirable ways.

One of the important requirements instituted by the 2009 change is the inclusion of a "Major Gifts Rider." This authorizes your agent to make gifts and transfers that are in your best interests. Since the rider may allow your agent to set up trusts, open new bank accounts, and make gifts to family members, or even to the agent himself, it is essential that you clearly understand its meaning and scope before signing it. In fact, the agent is now required to sign the document as well, acknowledging his or her responsibilities in handling your money and property.

These are all critical reasons why it's to your advantage to have a lawyer draft your Durable Power of Attorney. As a foundational element in Elder Law planning, it’s simply too important not to give it the attention it deserves. The bottom line is you may be authorizing another person to do anything you could do with regard to your money and property. There are few decisions in life with more serious implications than that.

Many feel that in signing a Power of Attorney they are losing control or power over their own lives. In fact, the opposite is true. Effective planning gives you more influence over what will happen in the future than you'd otherwise have. If you do not have a comprehensive Durable Power of Attorney for Elder Law planning purposes, and you become unable to manage your own affairs, decisions will still have to be made for you. Except then, they'll be made only after expensive guardianship proceedings in court, which will create delays.

Additionally, going to court means that a judge, who is a distant and unrelated third party, will be making decisions about your welfare. In that instance, you have less control than you would have had by effectively planning now for circumstances in which you're mentally incapacitated.

For these reasons, we believe that in most cases the advantages of a Durable Power of Attorney outweigh the risk of potential abuse. Needless to say, you'll want to pick someone to carry out your wishes who you trust. One way to be secure and feel more comfortable with the arrangement is to retain the document in your possession, and advise the person you appoint as agent where it can be found if it is needed. It is not necessary to deliver it to him or her immediately.

A Durable Power of Attorney is a cornerstone of all effective elder and special needs planning. It allows you to specify who you'd like to be in charge, in the absence of being able to make your own choices. Having one that's properly drafted creates options for the best possible action to be taken on your behalf in a difficult situation, as opposed to closing off support and creating problems for your family.


Table of Contents

25 Strategies to Prevent Financial Ruin
from Long-Term Health Care Costs

Copyright © Lamson & Cutner, P.C., 2009, 2010, 2011 All Rights Reserved

Download Free Special Report PDF

Special Report Disclaimer