FOR BREAKING NEWS VISIT www.couriersun.com SEPTEMBER 25, 2014 • THE COURIER SUN 21 The Elder Law Minute TM POWERS OF ATTORNEY – Join Us FREQUENTLY ASKED QUESTIONS BY RONALD A. FATOULLAH, ESQ. AND DEBBY ROSENFELD, ESQ. What is a power of attorney? A power of attorney is a document by which an individual can appoint another person to act on his/her behalf with respect to financial matters. The person who grants the ELDER LAW RONALD FATOULLAH, ESQ, CELA* power is referred to as the principal and the person who is appointed to act is referred to as the agent. A principal can appoint more than one agent to serve, either together or separately. Why does a person need a power of attorney? The predominant reason for an individual having a power of attorney is to have a document in place in case he/she becomes incapacitated and is no longer able to sign documents or make financial decisions. Having a properly executed and comprehensive power of attorney allows for one’s financial matters to continue to be handled in a fluid, timely matter. If the power of attorney is statutory, i.e. following the statutory form verbatim, financial institutions are legally obligated to respect it and thereby allow the agent to act on the principal’s behalf. What kinds of powers are included on a power of attorney? A standard statutory power of attorney enables the agent to perform basic financial functions on behalf of the principal, including but not limited to any banking transactions, real estate and insurance matters, etc. In order for the power of attorney to be mandatorily respected by a financial institution, the format must follow the statutory form in every respect. However, section “g” of the form, referred to as the modifications section, enables the principal to add extremely important additional powers that will likely be necessary in assisting principal to manage his/her own affairs. Can I simply download a power of attorney form from the Internet? Many people erroneously think that because a statutory power of attorney must be identical to the form provided in New York’s State’s general Obligations Law, it can simply be copied off the Internet and signed in the presence of a Notary Public. In truth, the statutory form, while helpful in an emergency, provides very little leeway for the agent to do any financial, estate, or Medicaid planning on behalf of the principal. Accordingly, the agent will be completely thwarted in any efforts to preserve the principal’s assets. Further, the signing of the form should ideally be supervised by an experienced attorney. Many people who do this on their own end up making costly mistakes that often have negative consequences. What is the Statutory Gift Rider? A standard durable statutory power of attorney allows the agent to engage in various financial transactions on behalf of the principal, but the only way the agent can actually transfer or gift assets out of the principal’s name is if the principal signs a statutory gift rider. The power to gift assets is often critical if the principal requires long term care. The Gift Rider must be signed in the presence of a Notary Public simultaneously with the power of attorney and must be witnessed by two individuals. The statutory gift rider should also contain important additional language in its “modification section” so that proper estate, Medicaid, and financial planning can be done. What if one does not have a power of attorney? A power of attorney can be executed at any time provided the principal has capacity to do so at the time of signing. If a person with assets in his/her individual name becomes incapacitated and does not have a power of attorney, the only way those assets can be accessed is by petitioning the court to appoint a legal guardian over the alleged incapacitated person. A guardianship involves a court proceeding and is often a lengthy and costly proceeding. Executing a comprehensive power of attorney with a statutory gift rider can help avoid the need for a court appointed guardian. Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that exclusively concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Debby Rosenfeld, Esq. is a senior staff attorney at the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDER-LAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516- 466-3300 or 800-353-3775. for a day of family fun and fitness to benefit the Pediatric Asthma Center at New York Hospital Queens. Queens HEALTHY kids&family DAY Sunday, October 5, 12:00 p.m. - 4:00 p.m. New York Hall of Science and Rocket Park 47-01 111th Street, Corona, NY 12:00 p.m. Guest Registration 12:00 p.m. - 4:00 p.m. Mini Golf • 450 Exhibits/Healthy Living Stations and Refreshments • Balloon Twister and Face Painting • Open Play and Exploration of New York Hall of Science 1:00 p.m. (Ages 5-8) Soccer with New York Cosmos 2:00 p.m. (Ages 9-12) Soccer with New York Cosmos 2:00-2:15 p.m. Program on Pediatric Asthma, Prize Drawings Admission: $35 General Admission, includes One Drawing Entry $125 Healthy Package of 4, includes One Drawing Entry for Each Guest and Discount on Premium Family Membership at NYSCI. Children Under 2 Free! For more information or to purchase a ticket or family package, please contact Alexis at 212.921.9070, ext. 16 or email nyhqfamilyday@thejfmgroup.com
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