Value of legal counsel when drafting New York powers of attorney

For the senior citizens of New York, estate planning, planning for Medicaid and planning for health care and its costs all tend to overlap and go hand in hand. Establishing powers of attorney – quite possibly one of the most important documents an individual can have in regards to estate planning – can have far reaching effects if – and especially if not – done properly. For this reason, it is generally advisable for individuals to forego attempting to fill out the paperwork themselves, especially since a regulation change in late 2016. An attorney with experience in elder law planning can help draft all necessary forms.

Without a power of attorney establishing an agent to act on an individual's behalf, that person's family and loved ones cannot make any decisions for him or her or manage any finances should the individual become incapacitated. Powers of attorney can be especially important when it comes to the issue of Medicaid planning. Typical powers given to the agent include property and business management and financial issues like debt payment and collection.

However, certain powers are not automatically granted unless they are specifically included in the documentation, and this typically includes the power to designate insurance policy beneficiaries and make gifts. For the purposes of Medicaid planning, the established agent needs to be able to make gifts of property and money. An attorney can help ensure that, in the event the individual is forced to enter a nursing home, the wording in the documentation specifically grants the agent power to do things like making gifts and modifying trusts.

When planning the powers of attorney, individuals should note that the documentation can either go into immediate effect or can be worded to become effect only after the individual becomes incapacitated. This second approach, known as a springing power of attorney, may seem preferable, but it can result in extra delays and expense while incapacity is determined. An experienced New York elder law attorney can help explain the various pros and cons of each approach and can work with individuals to draft powers of attorney that are specifically tailored to them and their situation.

Source:, SENIOR SIGNALS: Why not just use a 'do-it-yourself' power of attorney form?", Daniel O. Tully, March 12, 2017

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