POWERS OF ATTORNEY & HEALTH CARE DIRECTIVES

Incapacity can arise unexpectedly through illness, injury, cognitive decline, or another change in health. Without appropriate advance directives, family members may be unable to access accounts, pay expenses, communicate with financial institutions, or make medical decisions on your behalf. At the Law Offices of Colin D. Smith, PLLC, we help individuals and families throughout Westchester County and the Hudson Valley prepare documents that clearly identify trusted decision-makers and provide them with appropriate legal authority.

What is a Power of Attorney?

A power of attorney is a legal document through which you authorize another person—known as your agent—to handle financial and legal matters on your behalf. Depending upon the authority granted, an agent may be permitted to manage bank accounts, pay expenses, address tax matters, handle real estate transactions, apply for government benefits, and take other actions identified in the document. A properly executed New York power of attorney generally remains effective if you later become incapacitated, allowing your agent to act when assistance may be needed most.

The document can be tailored to grant broad authority or limited powers for particular transactions. Depending upon the principal’s needs, an agent may be authorized to:

Manage bank and investment accounts.
Pay bills and household expenses.
Buy, sell, or manage real property.
Address insurance, retirement, and tax matters.
Apply for and manage government benefits.
Handle business interests and legal claims.
Assist with estate and long-term-care planning.
Make gifts when that authority is expressly and properly granted.

The selection of an agent deserves careful consideration. An agent acts in a fiduciary capacity and must follow the principal’s instructions, act in the principal’s best interests, keep the principal’s property separate, and maintain appropriate records.

Financial Powers of Attorney

A power of attorney addresses financial and legal decision-making. The person creating the document is called the principal, while the person receiving authority is called the agent.

Health Care Proxies

A health care proxy allows you to appoint a trusted person to make medical decisions if you lose the ability to make those decisions yourself. That person is known as your health care agent.

Your health care agent does not assume authority merely because the document has been signed. The agent begins making decisions only after an appropriate determination that you are unable to make health care decisions for yourself. As long as you retain decision-making capacity, you remain in control of your own medical care.

Unless the proxy limits the agent’s authority, the agent may generally consent to or refuse treatment, select among available treatments, and communicate with physicians and other health care providers. Because decisions involving artificial nutrition and hydration require evidence that the agent knows your wishes, those preferences should be discussed clearly and, when appropriate, placed in writing.

Living Wills and Advance Instructions

A living will expresses your wishes concerning medical treatment if you become unable to communicate or make decisions. It may address life-sustaining treatment, resuscitation, artificial nutrition and hydration, pain management, and other end-of-life concerns.

A living will and health care proxy serve related but different purposes. The living will records your instructions. The health care proxy appoints a person who can interpret and apply your wishes as actual medical circumstances arise. When prepared together, these documents provide clearer guidance to your family, your appointed agent, and your health care providers.

Commonly Asked Questions

Is a power of attorney the same as a health care proxy?

No. A power of attorney generally authorizes an agent to handle financial and legal matters. A health care proxy authorizes a health care agent to make medical decisions when you are unable to make them yourself. A comprehensive plan commonly includes both documents.

Does signing a power of attorney mean that I give up control?

No. You continue to control your own affairs while you have capacity. The document simply authorizes your agent to act as well. You may limit the powers granted and, while you remain competent, revoke the appointment.

Can my agent make gifts or transfer my property?

Only if the power of attorney grants the necessary authority. Gifting provisions require careful drafting because they may affect your property rights, estate plan, taxes, and future Medicaid eligibility.

Can I appoint more than one agent?

Yes. You may appoint co-agents and determine whether they must act together or may act separately. You may also name successor agents in case the first person is unable or unwilling to serve. Requiring joint action may provide additional oversight, but it can also create delay or practical difficulty.

When does my health care agent obtain authority?

Your health care agent begins acting only after it has been determined that you lack the capacity to make your own health care decisions. If you regain capacity, you resume making those decisions yourself.

Do these documents expire?

A properly drafted power of attorney generally continues until it is revoked, terminated by its terms, or ends by operation of law. A health care proxy ordinarily remains effective indefinitely unless it contains an expiration date or triggering condition. Both documents should still be reviewed periodically.

What happens if I become incapacitated without these documents?

Your family may need to seek court appointment of a guardian to manage your personal needs or property. Guardianship proceedings can be time-consuming, costly, and emotionally difficult. Advance directives may reduce the likelihood that court intervention will become necessary.

How often should I review my documents?

Review them every few years and after a major change in health, family relationships, finances, residence, or applicable law. Divorce, the death or incapacity of an agent, or a breakdown in a personal relationship may require immediate revisions.

A Practical Advance-Directive Checklist

Preparing the documents is only part of the process. The following steps can make them more effective when they are needed:

Select trustworthy agents.
- Choose people who are responsible, available, and capable of carrying out your wishes.
Name appropriate successors.
- Identify alternate agents in case your original choices cannot serve.
Define the authority being granted.
- Determine whether broad powers or carefully limited authority best fit your circumstances.
Discuss your medical wishes.
- Speak candidly with your health care agent about treatment, life support, pain management, and end-of-life care.
Execute each document properly.
- New York imposes specific signing, acknowledgment, and witnessing requirements.
Distribute accessible copies.
- Provide copies to your agents, physicians, financial professionals, and other appropriate individuals.
Keep originals in a secure but accessible location.
- Do not place essential documents where no one can retrieve them during an emergency.
Review the plan periodically.
- Confirm that your selected agents remain appropriate and that the documents continue to reflect your wishes.

Planning Before a Crisis

Advance directives are most effective when completed before illness or incapacity creates an emergency. Once a person no longer has the required legal capacity, it may be too late to execute or revise these documents.

At the Law Offices of Colin D. Smith, PLLC, we work with clients to create powers of attorney, health care proxies, living wills, and related directives that reflect their individual priorities. Our goal is to preserve your independence, protect your wishes, and give the people you trust the authority they may need to help you.

Contact our office to schedule a confidential consultation concerning your incapacity and advance-care planning.