People in New York who are preparing an estate plan might want to consider creating a financial durable power of attorney. This would appoint a family member to take action on a person's behalf if the person becomes incapacitated. Without this document, even a spouse could be prevented from taking care of the person's finances. This would include dealing with things that need a signature from both spouses.
If a person does not have a durable power of attorney, it may be necessary for a family member to go to court and petition for guardianship, a process that can be expensive and time-consuming. If the person simply has a power of attorney but not one that is durable, its authorization could end when the person becomes incapacitated. There is also a document known as a "springing power of attorney" that takes effect when a person becomes incapacitated. However, a springing power of attorney can require a physician's certification of incapacity, so there could be a delay before it comes into effect.
A durable power of attorney is separate from a medical power of attorney, which appoints someone to make health care decisions. The financial power of attorney may allow a person to access safe deposit boxes, deal with a retirement account, and handle banking and investments.
An attorney may be able to assist people with this and other elements of estate planning. It is important to choose the right family members or friends for these roles in an estate plan. For example, the person who been named under the financial power of attorney should be organized, responsible and honest. The agent who has a medical power of attorney should be compassionate and able to mediate family conflict. It can be helpful if this person has a medical background although it is not necessary.