Part of the estate planning process involves the creation and execution of advance directives. These documents include a Power of Attorney, Living Will, Health Care Proxy and Living Trust. One of the primary goals of these papers is for the creator to provide specific instructions for property management and personal care in the event he is unable to handle such matters due to incapacity or other circumstances. In Article 81 Guardianship proceedings, the Guardianship Court will look to see if there are any advance directives in place. If so, the Court may dispense with the appointment of a Guardian. However, even where advance directives exist, Mental Hygiene Law Section 81.29 authorizes the Court to revoke advance directives if it finds wrongdoing such as undue influence. The New York Probate Lawyer Blog has published many articles regarding advance directives.
One advance directive, a Power of Attorney, allows a person to make various property management decisions as an agent for the person who creates the documents. These property matters are listed in the power and include the authority to handle real estate transactions, banking transactions, insurance transactions and business operating transactions. The creator may choose which areas to grant authority and can modify the manner in which the authority is to be exercised. There can be one agent or multiple agents who can act separately or together depending upon the written instructions.
As can be expected, the use of a power of attorney is sometimes abused and agents may take advantage of their power for their own benefit. Courts tend to be very cautious regarding these matters and there tends to be a great deal of litigation in the Surrogate’s Court and the Guardianship Court concerning the proper exercise a power of attorney.