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The “Power” in a Durable Power of Attorney

In the realm of estate planning, a Durable Power of Attorney (DPOA) stands as a crucial document, empowering a designated individual – the agent – to manage your financial and legal affairs.
January 16, 2024
HomeBlogThe “Power” in a Durable Power of Attorney

In the realm of estate planning, a Durable Power of Attorney (DPOA) stands as a crucial document, empowering a designated individual – the agent – to manage your financial and legal affairs. Particularly in New York, understanding the nuances of this statutory form, governed by Title 15 of New York General Obligations Law, is essential for ensuring your affairs are handled as per your wishes, especially in unforeseen circumstances like the onset of dementia or Alzheimer’s.

Empowering Your Chosen Agent: The Scope and Limitations

A Durable Power of Attorney is a statutory form that enables someone to appoint an agent to manage their financial and legal affairs. The principal, the creator of the Power of Attorney, chooses a trusted individual to act as agent during the principal’s lifetime. The idea is that the agent is empowered to manage the principal’s financial affairs if the need arises. Even if incapacitated, the appointed agent will still be able to use the document to access bank accounts, sign checks, pay bills, and carry out any essential estate planning.

The statute enumerates several categories of powers under GOL Sections 5-1502A through 5-1502N that can be granted to an agent:

(A) real estate transactions
(B) chattel and goods transactions
(C) bond, share, and commodity transactions
(D) banking transactions
(E) business operating transactions
(F) insurance transactions
(G) estate transactions
(H) claims and litigation
(I) personal and family maintenance
(J) government benefits
(K) financial matters related to health care
(L) retirement benefits
(M) tax matters, and
(N) all other matters.

The enumerated powers and the broad catch-all of “all other matters” do not give unlimited authority to the agent. Under the statute, some of these powers are limited unless expressly stated otherwise in the “Modifications” section of the form. For example, Section 5-1502D provides that “banking transactions” allows the agent to modify, terminate, and make deposits to and withdrawals from any deposit account. But, with respect to joint accounts, the agent cannot add a new joint owner or delete a joint owner unless such authority is expressly granted.

Likewise, an agent’s authority to handle insurance transactions under 5-1502F does not allow the agent to change beneficiary designations unless the Durable Power of Attorney specifically states otherwise. Under Section 5-1502L, an agent similarly cannot change the designation of beneficiaries of any retirement accounts unless this authority is expressly granted.

Gifting Powers: A Key Component in Medicaid Planning

GOL Section 5-1513 sets forth particular requirements regarding the authority of an agent over gifting. If the principal grants the agent authority relating to personal and family maintenance (Section (I) above), the agent may make gifts that the principal customarily made to individuals, including the agent, and charitable organizations, not exceeding $5,000 in any one calendar year. In order to authorize the agent to gift in excess of the $5,000 annual limit, the principal must expressly grant that authorization in the Modifications section, including whether the agent has the authority to make gifts to himself or herself.

While gifting is a significant power that should not be given lightly, it can be critical in certain situations. Gifting is a common tactic in Medicaid planning, where assets need to be transferred out of the principal’s name to meet the eligibility requirements. To qualify for Medicaid coverage for homecare or nursing home care in New York in 2024, an applicant cannot have more than $30,182 in assets. If the applicant lacks the capacity to make the necessary asset transfers, without a Durable Power of Attorney with gifting authority, the only alternative is for a legal guardian to be appointed by the court. Such a guardianship proceeding is costly and time-consuming.

Tailoring Your Durable Power of Attorney: The Importance of Expert Legal Advice

A Durable Power of Attorney is more than a mere legal formality. Crafting a DPOA that aligns with your estate planning goals requires professional legal expertise. An experienced estate planning attorney can guide you through the intricacies of assigning the right powers to your agent, ensuring the document is neither too broad nor too restrictive for your needs. By understanding its powers and crafting it with precision, you can ensure that your financial and legal affairs are in trusted hands, even in unforeseen circumstances.