If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" in New York—to handle certain matters for you.
You can make several different types of POAs. In particular, many estate plans include two POAs that are effective even if you become incapacitated: a financial POA, which allows someone to handle your financial or business matters, and a medical or health care POA (called a "health proxy" in New York), which allows someone to make medical decisions on your behalf. Both of these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in New York.
For your POA to be valid in New York, it must meet certain requirements.
New York requires that the person making a power of attorney be able to understand "the nature and consequences" of the POA. (N.Y. Gen. Oblig. Law §5-1501(2)(c).) If you're helping someone create a POA, you'll want to make sure that they understand what they're doing by signing the document.
In addition, New York requires that certain language be included in the POA. If you make your POA using a statutory form, reputable software program, or local attorney (see "Steps for Making a Financial Power of Attorney," below), the resulting POA should automatically incorporate the required language.
To finalize a POA in New York, the document must be:
In New York, the notary public can act as one of the witnesses; if you go this route, you would need to locate only one additional witness.
New York offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. However, statutory forms are often full of legalese, and it's not always apparent how to fill them out. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire a New York lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
Whatever method you choose, the process of making the POA will include selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent power over:
An optional section in the New York POA also allows you to write in other powers or to limit your agent's powers if the standard list does not fit your goals.
In New York, the power of attorney is durable by default (meaning it remains effective after your incapacitation) unless you explicitly state otherwise in the document.
As mentioned above, you cannot simply sign the document and call it a day. In New York, you must notarize the POA and also have it witnessed by two people who are not named in the POA as agents. The notary public can serve as a witness, so you might need to find only one more witness.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent will need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you checked off "real estate transactions" as one of the powers you granted to your agent, you should also file a copy of your POA in the land records office of any county where you own real estate. This will allow the land records office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. However, it's not necessary.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
New York allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
In New York, unless you've explicitly stated otherwise in the document, your durable financial power of attorney takes effect as soon as you've signed it before witnesses and a notary public. It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. It also ends if:
For more on New York estate planning issues, see our section on New York Estate Planning.