Services

The three documents everyone should have is an up-to-date Will, Durable Power of Attorney and a Health Care Proxy.

Your Will may simply address who gets what at your death and who is in charge of your estate (the Executor). If you have young children, Guardians are appointed and often Trust provisions are incorporated into your Will to provide protection for your children’s inheritance.

Judge Learned Hand stated in the landmark case of Gregory v. Helvering:
"Anyone may arrange his affairs so that his taxes shall be as low as possible; he is not bound to choose that pattern which best pays the treasury. There is not even a patriotic duty to increase one's taxes. Over and over again the Courts have said that there is nothing sinister in so arranging affairs as to keep taxes as low as possible. Everyone does it, rich and poor alike and all do right, for nobody owes any public duty to pay more than the law demands."

I find in my practice that many people fail to heed this sound advice, whether due to procrastination, ignorance or both. My job is to make the process as painless as possible. My style is to keep everything as simple as possible. I want you to know what documents you have in place and why.

I want you to feel comfortable with the process and feel the peace of mind a vast majority of my clients feel once their estate plan is finalized.
Call me to discuss your specific situation. I would be happy to get you started in the right direction.

 

New York Statutory Power of Attorney

July 15, 2021 - by: Michael H. Donnelly, Esq.

 

Once again, New York has revised its Power of Attorney as of June 13, 2021.  This marks the 4th time we received a new format in my 39 years of practice.   Here’s what you need to know.

 

The new format means its even more dangerous than ever to do-it-yourself.  Countless times I’ve seen downloaded Powers that were out-of-date or executed improperly rendering them useless.

 

A Power of Attorney is a document wherein you (Principal) appoint someone (Agent) to act on your behalf with respect to financial transactions.  You should also appoint a successor Agent in case the Primary Agent predeceases you or becomes incapacitated.  You can also name Co-Agents and specify as to whether they must act together or are permitted to act independently.

 

The Power is needed to manage your financial affairs if you can no longer handle them.  Although that is the intent, the Power is valid once it is properly executed.  There is a version called a “Springing” Power which only becomes valid upon your incapacity but I do not recommend it given the challenge of establishing your actual incapacity to the financial institution.

 

All Powers cease to be valid at death.  That’s when your Will kicks in.  Almost all Powers are “durable” in that they are valid despite your incapacity.  The New York Statutory Form contains the necessary language to survive your incapacity.

 

If your Power was executed on the old form when that form was valid, it is grandfathered, i.e. it is still valid.  I recommend updating to the new form however, when practical, to avoid delays at the time the Power is being used.

 

The new law added penalties to financial institutions refusing to accept the New York Statutory form which is another reason to adapt the new form.  I also recommend submitting your Power to your bank for approval, prior to it’s use.  This is because most banks today will scan the document for their legal department to review prior to allowing your agent to conduct banking transactions.

 

The new law added a requirement that the Power be witnessed by two people and notarized.  The old form did not require witnessing.  The notary can serve as a witness.

 

All Powers should be signed in black ink.  If the Power is used for a real estate transfer, it must be recorded with the Deed.  Many recording offices only accept black ink.

 

I generally make the Agent the same person who will be serving as your Executor at death.  The roles are similar in that they involve financial transactions and your estate will benefit from the continuity.

 

Powers require the Agent to serve in a “fiduciary” capacity.  That is, in the best interests of you, the Principal.  Sometimes, for estate tax or Medicaid qualification purposes it is prudent to make lifetime transfers of your assets, which we call “gifts”. Gifts by definition have no “Quid Pro Quo” so they are not permitted absent special language in the Power.  The old Statutory Gifts Rider has been eliminated.

 

One last note on Powers, from March, 2020 through most of June 2021 we were allowed to notarize documents and witness Wills by remote video conference (Zoom, Facetime, Skype and Microsoft Teams).  That all ended on June 24, 2021 when Governor Cuomo suddenly announced that the State of Emergency in New York was over and consequently, the protocols allowed in response thereto were rescinded.

 

If you have questions concerning your existing Power or want to get a new Power executed, please contact me and we can schedule a signing in my Manhattan or Westchester office.