While few people want to think about it, many will eventually reach a point where they are no longer able to care for their own needs. Whether due to physical or mental illness, an unforeseen injury, or simply because of growing older, many people eventually become unable to make the decisions or take the actions necessary to ensure their day-to-day affairs are handled. Before that happens, you should make sure you have a power of attorney in place, to make sure someone can handle your affairs when you no longer can.
Put in simple terms, a power of attorney is a kind of legal arrangement which authorizes someone else to take actions on your behalf if you become incapacitated or otherwise unable to make important decisions or conduct your affairs for yourself. When you execute a power of attorney, you designate someone, known as your attorney-in-fact, who will be legally permitted to make legal and financial decisions on your behalf as though they were you. They will then have the authority to access and manage your finances, sign legal documents on your behalf, and, if necessary, go to court to represent you. Although they are empowered to make decisions for you, they are obligated to act only in your best interests.
There are several ways a power of attorney can be structured, depending on your needs. For example, a power of attorney can expire by default if you become incapacitated, but you can designate it as “durable,” meaning it continues to stay in effect even after you become incapacitated. You can also limit the authority granted by your power of attorney to only certain limited circumstances, or you can make it more general. Additionally, a power of attorney can take effect right away, or you can designate it as a “springing” power of attorney, meaning it only comes into effect once you become incapacitated.
The primary advantage to forming a power of attorney is simple: you know that someone you trust will be taking care of your affairs when you cannot do it yourself anymore. You no longer need to worry about late bills because you forgot to pay them or worry about being tricked into signing documents you lack the mental acuity to fully grasp. It also allows you to relax about your legal and financial affairs and focus on your personal well-being.
Additionally, having a power of attorney in place means you can avoid the process of obtaining a guardianship. A guardianship is a court-appointed observer who plays much the same role that an attorney-in-fact does, except they are selected by a Surrogate or Supreme Court judge, not you. Not only might your court-appointed guardian not be someone you trust, it might not even be someone you know, which can be distressing, especially to someone who is incapacitated. As long as you have a power of attorney in place, however, you do not need to worry about who might be taking care of you when you can no longer care for yourself.
However, you need to be careful about who you designate as your attorney-in-fact when forming your power of attorney. Anyone to whom you grant that power will have potentially unlimited access to your personal assets and records, a fact that can easily be abused by someone who does not have your best interests at heart. Thus, you should make sure you only grant your power of attorney to someone you trust to adhere to your wishes and protect your personal interests.
The attorneys at Blodnick, Fazio & Clark are skilled and knowledgeable in estate planning. With offices conveniently located in Garden City, Nassau County, and Babylon, Suffolk County, the firm provides high-quality legal care at reasonable prices. If you require legal assistance concerning advance directives, establishing a trust, estate execution, or any other estate planning matter, call (516) 280-7105 or fill out our contact form for a free consultation.