Power of Attorney

A New York Power of Attorney is an extremely powerful and potentially dangerous document. It may authorize a trusted relative, friend or other designated person to act on your behalf to complete one or more financial transactions, or other matters. The Power of Attorney can be unlimited in scope, or it can be limited to only certain types of transactions, or even to only one specific transaction. We believe that a New York Power of Attorney should be carefully drafted by an experienced New York lawyer to grant only the powers needed to enable the agent (attorney-in-fact) to carry out the desired transactions or intentions of the person granting the Power of Attorney.

A Power of Attorney can be useful when a principal in a real estate or business transaction is not available to sign the contract of sale, or other legal documents, or is unable to attend the closing of title. For example, if the purchaser or seller of a house, co-op apartment, condominium apartment, commercial property, land, or a business is unable to attend the closing of title for that transaction, the principal can execute a power of attorney, which authorizes a trusted person to sign the legal documents on behalf of the principal.

It is extremely important that the Power of Attorney be carefully drafted to ensure that the other parties to the transaction will accept the authority of the agent to execute the documents. It is also important that the Power of Attorney not grant more authority than is needed to complete the desired legal documents or transaction.

New York law has strict requirements for the contents, as well as the execution, of a New York Power of Attorney. If these requirements are not satisfied, then the documents that the agent executes will not be accepted as valid in New York State.

Durable Power of Attorney

A Durable Power of Attorney may be effective immediately and furthermore will remain in effect even if the person who signs the Power of Attorney becomes mentally or physically incapacitated.

Springing Power of Attorney

A Springing Power of Attorney may only become effective upon the occurrence of a specified event or circumstance, such as if the principal becomes mentally or physically incapacitated. The Springing Power of Attorney enables financial matters to be carried out on behalf of a principal who becomes mentally or physically unable to take care of his or her financial matters, whether temporarily or permanently.

New York Terminology Regarding Powers of Attorney

The person granting the power to act under the Power of Attorney is the “principal” (previously the “donor”). The principal must be at least 18 years old. The person named to act on behalf of the principal is the “attorney-in-fact” or “agent”. This does not mean that the person is actually an attorney. A Power of Attorney may provide for alternate agents in the event that any of the agents named in the Power of Attorney are unable or unwilling to assume the designated responsibilities.

A New York Power of Attorney may be revoked at any time by the principal during his or her lifetime, however a revocation will not affect actions already taken by the agent prior to the revocation.

Comparison of Power of Attorney and Last Will and Testament

A New York Power of Attorney is only effective during the lifetime of the principal. The New York Power of Attorney automatically terminates upon the death of the principal. Therefore, do not make the mistake of believing that a Power of Attorney can take the place of a Last Will and Testament (“Will”).

In contrast, the Last Will and Testament (“Will”) only becomes effective upon the death of the testator (person signing the Will).