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Power of Attorney New York law makes provision for both a power of attorney that is immediately effective and for a so-called "springing" power of attorney that takes effect only when someone such as a physician certifies that the individual is no longer able to manager her/his affairs,* but the immediately effective document, a "Durable General Power of Attorney," is generally preferred. The disadvantage of the "springing" power of attorney is the need to certify that a person is no longer able to act for himself/herself. This can impose delays at precisely the time when quick decisions are needed, and a physician may be reluctant to be placed in the position of making such a decision. For those who do wish to plan ahead but are reluctant to surrender control over their assets while they can still manage them, the issue of control may be addressed simply by executing an immediately effective power of attorney but retaining the document in their possession. As one healthy 90-year-old explained her strategy, "I have told my son that if something happens to me, all the documents he needs are in a little tin box in my closet. But if I find him rooting around in my closet while I'm still healthy, he knows what will happen to him!" The law allows for a single agent to be named, but two persons may also have decision-making authority. If two are given joint authority, the form provides for the person signing the power of attorney to specify that they either of the two make act without a signature from the other, or that both must sign any document being executed on the basis of the power of attorney. There is also a provision for a "backup agent" who can assume responsibility if the primary agent or agents are unable or unwilling to act.
*Provisions for powers of attorney
are contained in §§ 5-1501 through 5-1506 of the General Obligations
Law. Model short forms are provided in § 5-1501. |
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