durable powers of attorney in rochester new york

Learn Why Durable Powers of Attorney are Important, What Role they Play in Your Estate Plan,

and How You Can Get the Most Out of Them

DURABLE POWERS OF ATTORNEY IN

ROCHESTER NEW YORK

MICHAEL ROBINSON ROCHESTER NEW YORK AREA ESTATE PLANNING ATTORNEY

http://mrobinsonlaw.com/estate_planning/index.php/estate-planning/

Powers of Attorney in Rochester New York www.mrobinsonlaw.com 2

When you create an estate plan in New York you will create different

instruments and tools that allow you specific benefits. One of the most

important tools you will create is the durable power of attorney.

Unfortunately, most people don’t really have much experience dealing

with these kinds estate planning tools. In order to help you understand

why durable powers of attorney are important, what role they play in

your estate plan, and how you can get the most out of them, we’re going

to look at several important issues.

POWERS OF ATTORNEY, LAWYERS, AND

ATTORNEYS IN FACT

To begin with, it’s important to clear up a common misunderstanding. A

power of attorney is a legal document. Through the document you, the

principal, will give another person or organization certain rights to

make decisions on your behalf. The person or organization you choose

to represent you will become known as your agent or your attorney-in-

fact.

When many people hear the terms “power of attorney” and “attorney-

in-fact,” they naturally believe that these documents somehow involve

lawyers. While you should always have a lawyer prepare any legal

document you intend to use, especially powers of attorney, simply

creating or using this document in no way means you have to involve a

lawyer.

The person or organization you name as your attorney-in-fact, for

example, can be anyone, and doesn’t have to be an attorney. When you


use a power of attorney you don’t have to have an attorney represent

you, nor does using the document give you or anyone else the ability to

practice law.

For the purposes of powers of attorney, the term “attorney” is simply a

word that means “representative.”

AGENT TERMINATION AND DURABILITY

Here is how a power of attorney works. As a capable adult, you are

legally entitled to choose someone who will have the ability to make

legally binding decisions for you, as if you

were making them yourself. For example,

you can choose a real estate agent and

give that person the ability to buy and sell

property on your behalf. When that agent

engages in a transaction, it’s not the agent

buying or selling property, but rather, the

agent doing it for you.

So, after creating a power of attorney

document and giving your agent certain

abilities to represent you, your agent can

then go out in the world and do his or her job.

Knowing that, you might be wondering why the word “durable” appears

next to “power of attorney.” A durable power of attorney is simply a

special kind of power of attorney that grants a specific kind of power.

● ● ●

Estate planning lawyers deal with powers of

attorney all the time. In most situations, people want to create durable powers of attorney to address specific topics.

First and foremost, people want to create these

documents in case they need someone else to

manage their finances or property. ● ● ●


In the real estate agent example above, you granted your agent limited

powers to represent you in real estate transactions. If you were to

become incapacitated, your agent would automatically lose his power to

represent you as soon as he learned that you had lost your capacity.

Only mentally capable adults can create a power of attorney, and once

they lose that power, any rights they gave their agents will

automatically cease.

But this is not the case with the durable power. Through durable power

of attorney, your agent will continue to be able to represent you even if

you become incapacitated. So, if you gave your real estate agent durable

power, that agent can continue to enter into whatever transactions you

have allowed even if you, for example, are involved in a serious car

crash and rendered unconscious.

However, the death of the principal always, and immediately, revokes

the agent’s authority. You cannot create a power of attorney that gives

your agent the ability to act for you after you are dead.

POWERS AND DECISIONS

Estate planning lawyers deal with powers of attorney all the time. In

most situations, people want to create durable powers of attorney to

address specific topics. First and foremost, people want to create these

documents in case they need someone else to manage their finances or

property. These types of powers are known as financial powers of

attorney because, as the name implies, they give your agent certain

financial rights and responsibilities.


In other situations, people want an agent who will be able to make

medical decisions should they become unconscious or incapacitated. In

other states you can give agent the right to do this by creating a durable

medical power of attorney. However, the State of New York does not

allow for these types of documents. Instead, people in New York can

create what is known as a health care proxy, or medical proxy. A health

care proxy serves the same basic purpose as a durable power of

attorney for health care would in other states. In other words, though

the two documents have different titles, they serve very similar

purposes, and are really only different in name only.

CHOICES AND LIMITATIONS

Some people who first learn of powers of attorney are uncomfortable

with the idea of giving away their decision-making abilities. This is quite

understandable. After all, your ability to make choices is inseparable

from the idea of individual freedom. When you give away your freedom,

it can feel like you are giving others the right to control you.

This is not the case. Every choice you make, from your decision to create

a power of attorney to your decision to terminate it, is entirely up to

you. As long as you remain mentally capable, you can fire your agent at

any time. You have total control of who you want to be your agent, as

well as complete control over the kinds of choices you want to allow

your agent to make.

Having said that, it’s very important that you make the right choices

when you choose to create a durable power of attorney. People who


experience problems after creating power of attorney often do so

because they have not made prudent choices. Though creating a power

of attorney document is fairly straightforward, you should never do so

without the advice and guidance of an experienced attorney who can

help you craft a document suited specifically to you and your needs.


About the Author

Clients notice Michael Robinson’s unique approach to his estate planning practice the minute they walk through his office doors. Mike has established a law practice that provides clients with a warm, comfortable and relaxed atmosphere staffed by professionals who believe in providing highly individualized attention. That’s especially important in Mike’s practice, because estate planning is an often personal process reflecting the most cherished hopes and dreams of his clients.

“The estate planning we do for our clients,” Mike explains, “often represents the culmination of their life’s work. That’s why we take a personal interest in

helping them complete estate plans that suit their needs and that address the unique circumstances of their families.”

There’s one last difference clients often remark upon in Mike’s estate planning practice. “Because we concentrate on estate planning exclusively, we have the focus to bring state-of-the-art, cutting-edge estate planning techniques and strategies to a broad range of clients, no matter how diverse.”

Mike’s firm has the breadth of expertise to provide its clients with estate plans ranging from the basic to the very sophisticated, including offshore asset protection trusts.

His office regularly conducts seminars on estate planning topics throughout the Rochester and Finger Lakes area. Mike has also been a guest speaker on the subject of estate planning before a variety of professional organizations.

The Law Office of Michael Robinson, P.C. 196 North Main St. PO Box 417 Naples, NY 14512 www.mrobinsonlaw.com Phone: (585) 374-5210 Fax: (585) 374-9327

http://www.mrobinsonlaw.com/

durable powers of attorney in rochester new york

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