Powers of Attorney and Health Care Proxies
A. Powers of Attorney - The purpose of a power of attorney is to authorize another person to transact business in the event of incapacity.
- New York State law allows an individual to designate another as the principal's attorney-in-fact and this designation will be unaffected by the principal's subsequent incapacity if the power of attorney specifically states that the powers will continue to exist even after the principal has become disabled or incompetent.
- Prior to a few years ago, the New York General Obligations Law provided that a power of attorney ceased to exist and be effective if the principal later became disabled or incompetent. As this produced severely unintended effects, (i.e., the lack of a power of attorney when the principal is most in need of one) the Legislature changed the General Obligations Law.
- A power of attorney can be in one of two forms.
i. A power of attorney can take effect immediately upon execution by the principal.
ii. A power of attorney can be a "springing" power of attorney which means that the power of attorney becomes effective upon the disability or incapacity of the principal.
- An individual can appoint more than one power of attorney. However, if the individual designates more than one power of attorney, the individual most also designate whether the named attorneys--in-fact are to act separately or together. Generally, it is recommended that an individual designate only one individual to act as attorney-in-fact.
- B. Health Care Proxies and Living Wills
- A health care proxy is similar to a power of attorney except that it applies to health care decisions.
- In a health care proxy, a person appoints another individual to make decisions regarding medical treatment in the event the principal is unable to do so.
- Unlike a power of attorney, an individual can only designate one attorney-in-fact.
- It is recommended that a living will be executed at the same time a health care proxy is executed. A living will directs that extraordinary means be withheld in the event of terminal, incurable and irreversible illness. A living will has no legal effect in New York State. However, a living will does exist as evidence of the individual's desires and intent regarding life prolonging treatment and can be very helpful to the attorney-in-fact designated in the health care proxy when called upon to make difficult decisions on the principal's behalf.
Bluestein & Muhlbauer, P.C.
333 International Drive
Williamsville, NY 14221
716.633.3200
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