If you are unable to make decisions due to an accident or illness, you should decide ahead of time who will manage your property and make medical decisions. Powers of attorney and healthcare proxies are key documents in estate planning, along with wills and trusts.
What is a Power of Attorney (POA)?
A Power of Attorney is a legal document in which a principal authorizes an agent (Agent/Attorney-in-Fact) to manage property, make financial transactions, take legal actions, etc. on their behalf.
Types of power of attorney
General power of attorney (General POA)
It grants a wide range of powers. You can represent them in banking transactions, real estate transactions, filing taxes, signing contracts, and more.
Limited/Special Powers of Attorney (Limited POA)
Grant permissions that are limited to a specific transaction or time period. Example: Representing a closing on the sale of real estate.
Durable Power of Attorney (Durable POA)
It remains in effect even if you become incapacitated. This is the most important type of estate plan. In New York State, you must include a separate “Durability” provision.
Healthcare Proxy
A document that designates who will make healthcare decisions for you if you become incapacitated:
- Consent/refusal of treatmentDecisions about surgery, medications, tests, etc.
- Life supportDeciding to continue or stop life-sustaining treatment
- Organ donation: Indicate your intent to be an organ donor
- Nursing facilitiesDecide on a facility: nursing home, hospice, etc.
New York State power of attorney requirements
- Legal formsNew York State recommends using a specific statutory form (Statutory Short Form POA)
- Notarization: Power of Attorney requires notarization
- Witnesses: Healthcare Proxy requires 2 witnesses
- Proxy signatureThe representative must also sign the form to indicate acceptance.
- Bank Separate FormNote: Some banks may require their own power of attorney forms
Special circumstances of Korean American families
- Korea Asset Management: A separate power of attorney (including notarization) may be required under Korean law to manage assets in Korea.
- Language barriers: If your parents are not comfortable with English, consider designating a Korean-speaking representative
- Cultural considerationsDiscuss your family's values about end-of-life care ahead of time
- Foreign resident agent: Designate a backup agent in the U.S., as it may be difficult for the agent to perform their actual duties if they are in the U.S.
Frequently asked questions
Q. What is the difference between a power of attorney and a trust?
A trust focuses on the distribution of your assets after your death, while a power of attorney is a document that allows your agent to handle your affairs if you become incapacitated during your lifetime. They're complementary, so it's a good idea to prepare them together.
Q. Can I revoke my power of attorney?
Yes. You can revoke your power of attorney in writing at any time, as long as you are mentally fit. You must notify your previous agent, relevant banks, and institutions when you revoke.
What ifs, prepare now. Contact the Law Offices of Jin Dong Cho for a consultation on creating a power of attorney and health care directive.
Phone: (718) 353-2699 | Email: jd@choattorneys.com
