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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.

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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 yourDurable 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 planningpurposes, 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.


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

  1. You can qualify for Medicaid (even if you don’t think so)
  2. The “Wait and See” Approach can Result in Ruinous Health Care Expenses.
  3. Plan for Home Care and Nursing Home Facility Care while You Still Can.
  4. What’s the difference between Medicare and Medicaid?
  5. It’s NOT too Late for Effective Medicaid Planning (even if you think it is)
  6. Why Hire an Elder Law Attorney?
  7. Don’t Prepare Your Own Medicaid Application
  8. Trusts Can Protect Your Home and Your Money!
  9. Special Trusts for Specific Purposes
  10. Protecting Co-op Apartments Require Special Handling
  11. Evaluate Your 401k or IRA Carefully when Planning for Medicaid
  12. Why Take the Lump Sum Option on Your Pension or Retirement Account?
  13. Choose Your Trustee Wisely
  14. Private Annuities can Help Protect Your Assets
  15. Caregiver Agreements Help Achieve Medicaid Eligibility
  16. Keep Your Medicare Insurance
  17. The Durable Power of Attorney
  18. Elder Law and Estate Planning
  19. The Health Care Proxy vs. the Living Will
  20. How to Choose an Elder Law Firm
  21. Streamline Your Financial Affairs and Record Keeping
  22. New York State is More Generous than Other States
  23. Your Attorney can Help Find the Best Care for You
  24. Long-Term Care Insurance Won’t Necessarily Solve the Problem
  25. Compassionate Elder Law Planning Focuses on Your Future Quality-of-Life!
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