What's “durable” about a durable power of attorney?

If someone has signed a power of attorney, the document is usually a "durable power of attorney."  It's not that the document is printed on sheets of titanium.  Rather, "durable" refers to what happens when the principal becomes incapacitated: Nothing.  A durable power of attorney goes into effect when signed and remains effective until the death of the principal (unless revoked), regardless of whether the principal someday loses capacity. 

There is, by contrast, such a thing as a "springing power of attorney," which springs into life once the principal becomes incapacitated.  Many lawyers counsel against this document, for two reasons.  First, if you don't trust your agent now, why would you trust that person when you'll be incapacitated and unable to protect yourself from him or her? And, second, in order to use a springing power of attorney, the agent would need to convince the bank (and whoever else) that the principal is incapacitated -- requiring letters from doctors who may be reluctant to get involved, or who may disagree with the agent as to whether the principal has become incapacitated.

Regardless of which type of power of attorney is signed, the principal remains in charge of his or her affairs for as long as he or she has capacity, and the principal can revoke the document at anytime, for any reason.

Is a lawyer needed to prepare a power of attorney?

In a word: Yes.

There was a time when a New Yorker could prepare her own power of attorney without the assistance of a lawyer and be reasonably sure that she'd done a good job of it.  No more.  That era ended with the infamous Brooke Astor case, in which the philanthropist's son was convicted of using a power of attorney to steal millions of dollars from her while she suffered from Alzheimer's Disease.  As a result of that case, the state legislature several years ago radically overhauled the NY power of attorney law with a mind to making fraud harder to commit, and the resulting form is much, much more complex than the old one. 

The new form is longer (click here to check out the NYS Bar Association's forms), it has lots of confusing bits and pieces, it needs to be initialed all over the place, it has two separate parts (one of which needs to be witnessed like a will), and, most challenging of all for the layperson, it lacks certain extra language that's usually necessary to include if the agent should need to enroll the principal in a pooled trust for Medicaid.  Even seasoned lawyers preparing a New York power of attorney for the first time inevitably have questions about its content, or the proper way to execute it.  So don't try this alone!

What if someone never executes a power of attorney?

The answer is – nothing, so long as the person is lucky enough never to become incapacitated.  It’s probably the case that as people are now living longer and longer, their chances of experiencing incapacity are increasing, which makes executing a power of attorney increasingly important.  And the alternative to a power of attorney is a petition for guardianship in NYS Supreme Court -- a potentially long, expensive, and upsetting experience that’s best avoided.

For Help 

Seniors who live in Manhattan may be able to  get help with life-planning documents like power of attorney prepared free of charge by volunteer lawyers through the VOLS Elderly Project if the senior is eligible for VOLS services.  For seniors outside of Manhattan, click on this link to LawHelpNY’s  Find Legal Aid  section, enter your zip code, choose the Seniors topic and Living Will subtopic to find organizations that may be able to help  in your area.

-Alexander H. Ryley Director, Elderly Project Volunteers of Legal Service