Power of Attorney

Wondering who can have a power of attorney? A power of attorney is a contract in which you appoint another person, who doesn’t have to be an actual attorney (your “attorney-in-fact” or agent), and grant that person the authority to make legal decisions and transactions on your behalf without additional permission. Under New York law, any mentally competent person (meaning you understand what you are signing) may create a power of attorney.

Having a power of attorney in place is important for every adult because if you become incapacitated, you want to have someone you trust making decisions on your behalf. Without a power of attorney, no one can handle your affairs without going to court in a guardianship proceeding.

What powers can I grant in a power of attorney?

It is important that you consider the powers you are granting carefully, as well as consider the level of trust you have in your agent. Power of attorney can present a powerful temptation for dishonesty; in the wrong hands, an overly broad power of attorney can leave you the victim of fraud and/or theft.

New York’s General Obligations Law recognizes the following areas as commonly appropriate for a durable power of attorney. You may authorize your agent to make transactions on your behalf in the areas of:

  • Real estate
  • Goods
  • Bonds
  • Banking
  • Business operations
  • Insurance
  • Estates
  • Claims and litigation
  • Personal and family maintenance
  • Benefits from governmental programs or civil or military service
  • Health care billing and payment matters; records, reports and statements
  • Retirement-benefits transactions
  • Tax matters

Your power of attorney is not limited to these areas; New York law specifically provides a catch-all for “all other matters,” which includes any act your agent may do lawfully on your behalf.

Can I limit my power of attorney?

Yes, you may limit the agent’s authority to act in any area.

  • Example: you may give your attorney-in-fact the authority to rent out your home, but exclude the power to sell it.

You can also limit the length of time a power of attorney lasts.

  • Example: you can authorize a power of attorney to sell your house by a certain date, and then the power of attorney expires whether the house is sold or not.

Are there powers I cannot grant?

Yes. You may not give power to your agent to make medical or other health care decisions for you beyond dealing with billing, payment, records, reports and statements. You may make a health care proxy for this purpose.

Does creating a power of attorney mean I cannot act for myself?

No, so long as you are competent, you may continue to make legal decisions and financial transactions for yourself.

Can I revoke my power of attorney?

Yes, as long as you remain competent, you may revoke your power of attorney at any time and for any reason. Your revocation must be in writing and you must notify institutions that rely on your power of attorney (like banks) that you have revoked it. You should also make sure your agent understands you have revoked his or her authority.

What happens to my power of attorney if I die or become incapacitated?

Your power of attorney terminates when you die. If you become incapacitated, the power of attorney continues unless you specify that it is not a durable power of attorney.

What happens to my power of attorney if my agent dies or becomes incapacitated?

Your power of attorney terminates if your agent dies or becomes incapacitated. In addition, if your agent is your spouse, the power of attorney terminates if you get divorced.

What level of competency do I have to demonstrate to execute, modify or revoke a power of attorney?
You need only to have the ability to comprehend the nature and consequences of your action. That means, for example, that someone in the early stages of Alzheimer’s disease or other dementia, or someone who has had a stroke with resultant brain damage may be able to execute, modify, or revoke a power of attorney. Capacity depends on the particular circumstances of each case.

I would like to execute a durable power of attorney:

  • Consider what powers you want to grant.
  • Consider whom you would appoint as your agent/attorney-in-fact.
  • Get in touch with an experienced estate planning or elder law lawyer.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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