Power of Attorney & Medical Directives

No matter where you are in the estate planning journey, it can be beneficial to establish a power of attorney (POA) and medical directives such as a Health Care Proxy and Living Will. These ensure that your personal, financial, and medical decisions are made in your best interests if you become injured or incapacitated, either short-term or long-term. Both POA and medical directives mitigate uncertainties about your preferences and protect your finances and assets if you are unable to manage them yourself, and they can serve you if you are facing chronic health conditions, disability, or mobility issues.

Understandably, many of us feel uncomfortable thinking about our own death or incapacity. Unfortunately, this often leads us to put off our estate or medical planning until it is too late. Accidents can occur at any age, which may result in decisions about your health and finances being made by people you do not know or trust, such as a court appointee.

At Pitta & Baione LLP, our estate planning attorneys can work with you to draft and execute your POA and medical directives to ensure that your wishes are formally expressed and legally documented. This provides peace of mind, knowing your affairs are in good hands.

Power of Attorney

What is a Power of Attorney?

A power of attorney or a POA is a legal document that grants a person (known as “the agent” or an “attorney-in-fact”) the authority to act on behalf of someone else (known as “the principal”). When a person is named as your agent, it allows them to make decisions for you if you are not able to make them yourself.

Certain POAs are drafted in a way that allows the agent to act on behalf of the principal even if he/she is not incapacitated. A POA is a powerful contract, and therefore, you should consult a lawyer when you decide to appoint someone as your POA.

Types of Power of Attorney

The types of decisions an agent is allowed to make depend on the type of POA that has been enacted and the specific powers given. Here are some of the most common types:

• General Power of Attorney: This document grants the agent the ability to handle a variety of affairs, such as financial transactions, legal decisions, and business operations.
• Special or Limited Power of Attorney: These types of documents allow the agent to act in more defined scenarios, such as selling property or managing certain financial accounts.
• Durable Power of Attorney: This type of POA does not terminate when you become incapacitated, but it must be created while you are still capable of making decisions. It is intended to allow someone to act on your behalf if you become incapacitated.
• Springing Power of Attorney: This type of POA only grants authority to the agent under certain conditions, such as your incapacity.

How Does a Power of Attorney Work?

The process of creating a POA begins by selecting a trusted agent and then formalizing this appointment through a legal document, which must be signed, witnessed, and notarized as required by law in New York. At Pitta & Baione LLP, our estate planning attorneys will ensure that your POA is drawn up per your wishes and that the document is executed properly.

The scope of the agent’s authority, defined in the POA document, is all relating to financial transactions and can be as limited or as broad of authorities as you select. The agent named in your POA will be legally required to act according to your preferences within the limitations outlined in the document or in your best interest. In New York, your POA must be executed while you are mentally competent, and the agent named must not use it to benefit themselves unless the agent is authorized to do so.

Additionally, the POA can be revoked by you at any time (provided you are still mentally competent) and terminates upon your death.

When Is a Power of Attorney Needed?

In many situations, a person may decide to create a POA (limited or general) simply because they do not have the knowledge or expertise to make financial or business decisions on their own. In other scenarios, a person may want to protect their rights if an injury or disease takes away their cognitive ability. Whatever the reason may be, the goal of a POA is to protect an individual’s agency and rights from other people or groups that may attempt to take advantage of them in their vulnerable state.

Medical Directives

Medical directives (also commonly known as advance directives) outline an individual’s preferences for medical care in situations where they may no longer be able to make their own decisions. In NY, a Health Care Proxy and Living Will are two commonly used types of medical directives.

Medical directives can be detailed in a living will. A living will specifies the types of medical treatments and life-sustaining measures a person may want, such as resuscitation, mechanical ventilation, or tube feeding.

With the help of a formal document, which is state-specific, you can designate a healthcare proxy or agent to make medical decisions on your behalf. This document can also outline specific instructions regarding organ donation, pain management, and other personal preferences. This way, your medical directive can serve as guidance to healthcare providers, thereby obviating the need for family members to make challenging decisions for their loved ones.

Creating and Implementing Medical Directives

To establish a medical directive, you can contact our estate planning attorneys, who are experienced in estate planning laws. This will simplify the process, as the estate planning attorney will understand the challenges typically associated with drafting an air-tight estate plan. Once your lawyer has discussed and reviewed your goals, the next step is to draft your medical directives.

Generally speaking, medical directives must be in writing, signed by the principal, and witnessed by at least two individuals, one of whom should be a notary. You must be mentally competent at the time of creating the directive, meaning that you fully understand the implications of the healthcare decisions and all terms of the contract.

Once your medical directives are drafted and executed in front of two witnesses, they will remain unchanged unless you decide to edit or dissolve them. Our estate planning attorneys can help you with any updates you wish to make.

Importance of Medical Directives

Establishing medical directives is all about asserting your autonomy and ensuring your wishes are respected if you can no longer articulate them yourself. Medical directives preserve your dignity and agency in important medical procedures by allowing you to plan your care ahead of time.

Why Work with a Lawyer?

Whether you decide to create a POA, establish medical directives, or both, the most important thing you can do is to make sure that the process runs smoothly. You want to ensure that your documents are legally sound and accurately reflect your wishes.

Pitta & Baione LLP can help you avoid common pitfalls and mistakes by leveraging our in-depth knowledge of New York-specific laws. Our team prides itself on making complicated laws easy to understand, and our clients’ testimonials reflect our commitment. If you are ready to get started on your POA or medical directives, or if you have any questions about the information above, we hope to hear from you.