If you’ve got elderly parents in NY, you might be considering if it’s time to create a power of attorney agreement with them.
Whether you’re noticing signs of mental decline, or you’re worried about sudden injury or illness, or you just want to remain on the safe side, there are several valid reasons to get started on the power of attorney (POA) process.
In this article, we’ll cover what is a power of attorney, the different types of POAs in NY, and we’ll also answer some of the most frequent questions about the power of attorney responsibilities, rights, and more.
What is a power of attorney?
A power of attorney, also known as a POA, is a legal document that would provide you the authority to make sensitive decisions on behalf of your elderly parents. For example, financial or medical decisions.
Once granted power of attorney, you’ll be acting as their agent (also known as the proxy).
There are different types of power of attorney documents that provide different types of authority in various situations. Below, we’ll cover each type of POA in NY so you’re aware of which ones you need for your family.
Why is power of attorney important?
Accidents or sudden illnesses can happen to anyone. But in general, older adults are at higher risk of a sudden medical situation.
And in such events, it can be very important that they have a trusted agent that can either accept or decline specific medical treatment on their behalf.
If there is no power of attorney in place, that can create unnecessary hassles in a situation where time is of the essence.
There could be disagreements between family members about the right course of action. You might even have to rely on a court to decide who should be the agent.
So, the best thing to do is to sit down with your parents, discuss their wishes with them in various medical, financial, or legal situations, and then create a power of attorney document.
Who should have a power of attorney?
In theory, it could be a good idea for most adults to have a power of attorney in place for unexpected circumstances, like an accident that leaves you temporarily incapacitated to make medical decisions.
But a power of attorney is especially important for the elderly, because generally speaking, they’re at a higher risk of sudden injury.
If you notice signs of significant mental decline in your older relatives, you should get started on the POA process as quickly as possible.
The different types of power of attorney in NY
Let’s examine the different types of power of attorney documents in New York.
A durable power of attorney
Many older adults choose to go with the durable power of attorney route because it provides authority to the agent to act on their behalf if they become unable to function mentally.
That’s different from a general power of attorney which only remains valid as long as your parents are fully capable of making decisions.
As we mentioned above, one of the main reasons why a POA document is important is because it allows someone to protect their rights and choices through a trusted agent.
As a durable POA, you’re authorized to make decisions on financial, legal, and other official matters.
You can review the standard NY durable power of attorney form to learn more about the process.
Here, we’ve covered some of the main sections in the form
In the first section, your parents will specify who is the agent. If it’s you, then your information needs to be added here.
There’s also a section later in the form where you have to acknowledge and accept your role as an agent.
Your parents can specify multiple agents. For example, if you have siblings, and your parents want all of you to be agents on their behalf.
In such cases, by default, all the agents will have to work together when representing the principal.
Otherwise, there is an option to allow different agents to act separately on their own.
If there are previous agents that have been granted similar authority (for example, the family attorney), then your parents can either revoke their agent status in the “Modifications” section or specify that all of you must act together.
If left blank, then any previous agent with power of attorney will be able to act separately.
There is an optional section to add any successor agents, in the event the main proxy is not available for some reason.
There can be multiple successor agents, and they might be required to act together, or allowed to act separately.
To confirm you as your parent’s durable agent/proxy, there must be two witnesses who sign the form and confirm the following.
- You’re a competent adult (you are able/willing to make judgments and decisions on your parent’s behalf).
- The principal (your parent) willingly appointed you as their proxy, and they were not forced to do so in any way.
How long is a durable POA valid?
The principal can specify when, and if, there is an expiration date for the document in the “Modifications” section.
If they don’t specify an expiration date, then the POA will remain indefinitely unless it is revoked.
How does a durable POA get revoked?
A POA can is revoked when one of the following happens.
- The principal informs the agent (either verbally or in writing) that they wish to terminate the POA agreement.
- If the agent is one’s spouse, then divorce automatically cancels the POA (one can always create a new POA and specify their ex as the agent).
- If the principal creates a new power of attorney with another person (there can only be one agent at any given time).
Financial power of attorney
As the name suggests, a financial power of attorney specifically deals with financial issues. In New York, it is also known as a general power of attorney.
But there might still be situations where a financial POA is vital, even if your loved one is mentally capable of making decisions.
For example, if your elderly parent has a disability that limits their movement, they might want you to go to the bank or take care of other financial transactions.
Your parents will be able to specify when the POA becomes effective, when it terminates, etc.
So, if one anticipates a date when they would recover from an injury and resume full movement, at that point they would no longer need an agent.
The principal can also indicate that the POA only becomes valid if they were to become incapacitated and unable to make decisions.
You can review the financial power of attorney form here.
Another feature of the financial POA is that your parents would be able to pick and choose the types of transactions for which you’re authorized to act on their behalf.
The form lists all the different transaction types, but here are a few examples.
- Make payments or collect money owed
- Acquire, lease, or sell property
- Open and close bank accounts
- Write checks, deposit, withdraw money from bank accounts
- Act on tax issues
- Access safety deposit boxes
- Lend or borrow money
A medical power of attorney
A medical power of attorney would give you the authority to act on your parent’s behalf when it comes to healthcare decisions if they’re unable to express their wishes because they’re incapacitated.
With a medical POA, you would become their healthcare surrogate who would communicate on their behalf when it’s time to make certain treatment choices.
Review the NY medical power of attorney form for detailed instructions.
Benefits of a medical power of attorney
Besides the fact that your loved ones can enjoy the peace of mind knowing that their treatment choices will be respected even if they’re unable to communicate, there are a couple of other key benefits of establishing a medical power of attorney.
- Easier for medical providers – The medical provider will look to the family for guidance. It makes the process a lot easier when there are clear instructions about your parent’s wishes, and one point person to communicate with.
- Prevent disagreements – If there is an established POA, it prevents disagreements and conflicts within the family. If your parent has already decided the right course of action, and who will act on their behalf, then there isn’t a whole lot left to discuss.
When does a medical power of attorney come into effect?
When it comes to medical decisions, the agent’s authority to make decisions for the principal will take effect if they’re deemed to lack the capacity to make health decisions.
So, if your parents are worried that they’re handing over all control to their agent, you can reassure them that a durable POA would only come into effect when necessary.
Springing power of attorney
Other types of power of attorney agreements, whether durable, medical, or financial, can all be set as a springing power of attorney.
Also known as a conditional power of attorney, a springing power of attorney only comes into effect when an event happens. Typically, this is when the principal becomes incapacitated and is no longer able to make decisions on their own.
It could also be another probable scenario that leaves one unable to be physically present for transactions.
For example, someone in the military might expect to have to travel overseas and not be present for financial transactions. They could appoint someone as their financial POA, and the springing event would be when they get deployed for active duty.
What rights does the power of attorney give you?
The rights you would get as a power of attorney would depend on the following factors.
- Which type(s) of POA you’ve been granted
- Within each POA form, which specific responsibilities have been authorized for you ( the agent)
Maybe you’re the agent through a financial POA, and your parents have only authorized you to make transactions at the bank. Or, they might have trusted you to handle lending and borrowing.
In the medical power of attorney form, there’s an option for your parents to limit your rights when it comes to specific treatments.
So, your rights would depend on the agreement that you have with your parent or loved one, and which types of POA are in question.
But regardless of your specific rights, you have some legal and ethical responsibilities as an agent.
Power of attorney responsibilities
Even if it is your parents or another close relative, when you enter the power of attorney agreement, there is now a legal relationship between you.
And because of that, you have the following responsibilities.
- You must act according to your principal’s directions
- If there are no directions, then act in the principal’s best interest
- Avoid conflicts of interest that might incentivize you to act against the principal’s best interest
- Keeping your assets separate from that of the principal’s
- You must record and keep track of every transaction you perform on the principal’s behalf
- You must notify your identity as an agent anytime you act on behalf of the principal
How do you get power of an attorney over an elderly parent?
Here are the steps you need to follow to get power of attorney for an elderly parent.
Step 1 – Discuss and explain
As we’ve mentioned already, you must discuss things in detail with your parents to make sure you understand their wishes, goals, preferences, etc.
Look through the different power of attorney types above, review the forms, and gain a good understanding of them so you can explain them to your parents, and alleviate any concerns.
It cannot be overstated how important it is to get on the same page to avoid any serious misunderstandings down the road.
Step 2 – Decide on the POAs
Decide which power of attorney documents make the most sense for your family.
It could be that you sign a general durable power of attorney, and your family decides that’s enough. Or perhaps you want to be more specific, and you become a financial agent and health proxy for your parents.
Step 3 – Gather forms and witnesses
Download relevant forms and read them over carefully. Read them more than once to make sure you’re not missing anything.
Then pick two adults who will witness the power of attorney agreement signing.
Fill out the form together with your parents in front of the witnesses and have them sign the forms as well.
Bonus step – Discuss with an attorney
If you can, it’s always best to consult an attorney when you go through this process. They might provide you with further beneficial advice based on your specific family circumstances.
Can you get power of attorney without consent?
The short answer is no, you can’t get the power of attorney without consent from your parents. As we’ve discussed they must be coherent, capable, and willing to make you their agent or proxy.
But if they’re already losing their cognitive abilities, but they won’t provide consent, then you might have another potential option if you believe gaining POA is in your parent’s best interest.
You can gain guardianship by proving that your parents are mentally incapable. You can learn more about guardianship from NYCouts.gov.
How do you prove incompetent parents?
To prove that your parent is incompetent and not capable of making the right decisions for themselves, you’ll have to present the case to a local court.
They will review all the evidence, and come to a decision.
If you have to pursue this route, you will need to hire an elder law attorney. Note that if your parent wishes to challenge your court pursuit to prove them incompetent, they can enlist the help of an attorney as well.
Imagining a scenario where an elderly parent or loved one isn’t capable of making decisions on their own is not something anyone wants to think about.
But even if your parents are in good health, and there are no reasons to think that would change in the near future, unfortunately, accidents happen. And as we get older, our risk of sudden illnesses increases as well.
So, as the saying goes, it’s better to be safe than sorry. The right time to establish a power of attorney is when everyone is in good health, and you can have the necessary discussions calmly and without pressure.
Take some time today to sit down with your loved ones to discuss their plans, wishes, etc, and try to agree on establishing a power of attorney.
Once it’s done, both you and your parents can rest assured knowing the legalities are taken care of, in case such a situation arises.