Power of attorney is one of the most common and important legal mechanisms for anyone who is paying for (or managing the care of) a loved one living in a senior living community. As we’ve covered on the blog before, the specific legal requirements governing things like the creation or enforcement of a power of attorney will be determined by the specific state law in which the power of attorney is being created. While most states around the country have very similar power of attorney laws, it is still important to make sure you know the boundaries of local law any time you have a power of attorney agreement. While you should always consult a local lawyer before signing or drafting a power of attorney agreement, the following guide will help you get a sense for how to start the process of getting a power of attorney for your senior parent in New York.

Power of Attorney Basics

Before diving into the specifics of getting power of attorney in New York, it’s helpful to have a quick refresher on what power of attorney is in the first place. At a high level, power of attorney is the legal mechanism by which one individual grants another individual the legal authority to handle some matter on their behalf. Power of attorney can be used for any number of things. Sometimes it’s used to take care of a task of both limited scope and duration, such as when a senior parent signs a power of attorney to allow their adult child to sell their home on their behalf. In other cases, a power of attorney is designed to cover a broader range of things in someone’s life, such as when a senior parent signs a power of attorney to allow their adult child to manage their finances or make medical decisions on their behalf. 

Valid Power of Attorney in New York

While the basics for creating a valid power of attorney relationship are roughly the same everywhere, each state has its own requirements for creating, modifying, and ending a power of attorney document, as well as the scope of responsibility created by a grant of power of attorney. In order to create a valid power of attorney in New York state you must be at least 18 years of age and have full mental capacity (meaning that you understand the nature and consequences of your actions when signing a power of attorney). While your senior parent will obviously fulfill the first requirement, fulfilling the second can sometimes be a concern for some seniors.

A valid New York power of attorney must be typed or written in a legible format. Usually, the best case is for an attorney to draft a bespoke power of attorney document for you. That being said, New York state also provides several power of attorney templates for use by individuals. If you need a power of attorney to handle financial or business matters, you can use New York State’s statutory power of attorney. This “short form” is a free template provided by the New York state government that allows you to create a power of attorney for a limited subset of financial issues, such as paying your bills, filing your taxes, or selling property on behalf. Note that a statutory power of attorney does not allow for someone to make medical decisions on your behalf, which must be handled by a healthcare proxy. While these templates are incredibly useful resources, it is always a good idea to consult an attorney before drafting or signing a power of attorney document to make sure that you are creating the right power of attorney relationship, according to the right set of legal requirements.

Once drafted, you must sign your power of attorney document in front of two witnesses and have the document notarized by a notary public (unless you are creating a health care proxy in which case you will only need the witness signatures but will not need a notary public). Keep in mind that the notary can also act as one of your witnesses (however your chosen agent cannot). It is also a good idea to choose a witness who is not a beneficiary to your estate.

The final step is to choose the person who will serve as your agent under your power of attorney document and have them sign the power of attorney document itself in order to accept the power created by the power of attorney. Your agent does not have to sign the power of attorney document at the same time that you do, and it will often be the case that your agent will sign the document sometime after you have. However, you will also have to have their signature notarized.

Who can be an agent in New York

Speaking of your chosen agent (also known as a proxy), New York law has several requirements regarding who may be a chosen agent in a power of attorney arrangement. The baseline legal requirements of who can serve as an agent under a power of attorney are similar to the requirements for who can create a power of attorney: your agent must be at least 18 years of age and have full mental capacity. Generally, the best agent for your power of attorney will be someone who knows you well and is willing and able to act on your behalf, such as a work colleague, close friend, or family member. 

In addition to these baseline legal requirements, New York law imposes several requirements on agents under a power of attorney arrangement that may affect your choice of agent. First, your agent must follow the instructions that you lay out in your power of attorney document and act in your best interest. In addition, your agent must make sure to always keep their property separate from yours as well as to always disclose to third-parties when they are acting on your behalf as your agent. Finally, New York law also requires that your agent keep documentation for all payments and transactions that they conduct on your behalf. 

While these requirements may not seem like they are disqualifying for anyone you might be considering as your agent (we would hope anyone you would choose would understand the need to act in your best interest), it’s important to keep these requirements in mind when choosing your agent. The requirements, for example, that an agent be able to diligently look after and keep track of your property or always disclose that they are acting on your behalf may make an individual who is loving but perhaps a little disorganized a less than ideal choice. Make sure you are choosing an individual who will be able to successfully handle the responsibilities that come with being selected as an agent.

Steps to take after signing power of attorney

Once you and your agent have signed the proper documentation, it’s a good idea to distribute copies of the power of attorney document to your agent, as well as to all the individuals or institutions that they will be interacting with on your behalf (such as your bank or your doctor). Your agent will have to prove that they are in fact your agent before being able to make any decisions on your behalf, and so it is often easier if the relevant people already have your documentation ahead of time. 

Make sure to keep your signed power of attorney document in a safe place along with all your other estate planning documents. Another good general tip, regardless of what state you or your senior parent are in, is to routinely check these documents to ensure that they are reflecting both your current life situation, as well as your future plans. It will be a much easier process changing your power of attorney or estate planning documents if you have them all together and organized in the first place.

To learn more about how Sunbound can help make senior living more affordable for you or your loved one, send us an email at info@sunboundhomes.com or request more information on Sunbound. Sunbound is the best way to pay for senior living and is on a mission to make senior living affordable for everyone.