Misconceptions about Power of Attorney

Many people are familiar with the concept of “power of attorney”, but less have an idea about these documents operate. A power of attorney is used to give one or more individual the power to act on your behalf or as your agent in case something happens to you.


The powers granted through a power of attorney document can be limited in nature to specific activities or can a broad range of abilities. The powers granted through a power of attorney document can also be either temporary or permanent in nature.


The purpose of this article is to review some of the common misconceptions that people have about power of attorney documents and how they operate.


# 1 – People Declare Incompetent Can Sign POAs


A person who is declared legally incompetent is not able to sign a power of attorney document. Instead, these documents are only capable of being signed if a person is able to do so.


Because an incompetent person is unable to sign a power of attorney document, it is important to plan in advance in case this happens.


In situations where a person does not appoint a power of attorney in advance, one of the only remaining options will be to appoint a conservator or guardian through a court proceeding.


# 2 – Online Power of Attorney Documents Are All You Need


While it is possible and even relatively simple to find a power of attorney document online, you should avoid these documents. Instead, power of attorney documents should be modified to match the unique factors that arise in each case.


As a result, using a power of attorney document that you find online often means that the document will not satisfy New York legal requirements, fail to adequately represent details in your case, or contain language that is too ambiguous in nature.


# 3 – Power of Attorney Documents Let an Agent Do Anything


An agent who is appointed under a power of attorney document has a “fiduciary duty” to make decisions that are in the best interest of the incapacitated person. As a result, an agent does not have the ability to act in any way that they would like and must make decisions that are in the incapacitated individual’s best interest.


If you are worried about appointing a power of attorney because you are afraid that a person will not successfully manage your estate, it is important that your attorney is lawfully make decisions that would not be in your best interest.  


# 4 – Some Types of Powers of Attorney Survive Death


All powers of attorneys terminate at a person’s death. There are some types of power of attorney referred to as “durable”, but this durable involves issues of incapacity rather than death.


Other types of power of attorney terminate following a declaration by a court or medical professional that a person is mentally incompetent and no longer able to make decisions on their own behalf.


Speak with an Experienced Estate Planning Lawyer


Even if you are not familiar with a power of attorney document, it can still play a valuable role in estate planning.

If you have questions or concerns about the estate planning process, you should not hesitate to speak with an experienced estate planning attorney. Contact Ettinger Estate Planning today to schedule a free initial consultation.

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