How does Power of Attorney Work in New York?
January 30, 2009 11:00 AM   Subscribe

Since I am a lawyer (though of course, not your lawyer, and not his lawyer), a family member asked if I could help him with some issues regarding a durable power of attorney (NY State). Unfortunately, I'm not a trusts & estates lawyer, so I need some direction as to what I should look at and consider in order to let him know whether he should consult a lawyer with that expertise. I know you're not my lawyer, and I'm not seeking your legal advice.

My cousin's husband, Jay, asked me for advice regarding his situation. Jay's mother recently passed away. Previous to her death, Jay's mother had a durable power of attorney for Jay's cousin, Max, who is developmentally disabled and legally incompetent (I don't know much about the exact details of Max's situation). Max is in some sort of living facility, and Jay's mother took care of administrative needs for Max.

Previous to Jay's mother's death, she arranged for the durable power of attorney to pass to Jay after she died (she was sick for over a year before her death). I haven't seen the paperwork yet so I don't exactly know how this was done, but please assume for the question that Jay now holds a durable power of attorney regarding Max.

A check from the proceeds of another family member's estate recently were sent to Jay's mother's address (after her death). Jay's step-father forwarded the check to Jay. I am unclear as to whether the check is made out to Jay's mother, for the benefit of Max, or simply to Max. Jay expects some other checks in the next few months as well, and wants to know how he should deal with opening the bank account and how he is limited in dealing with the money (apparently there is some investments for the Max's benefit that have recently lost 80% of their value due to the loss in their funds, and he wants to know if he has the right to move them to less risky investments, for example).

Jay is hesitant to contact a lawyer because there really is very little money here (currently under $5000 I believe), and he can't afford to pay very much at all out of his own pocket for a lawyer. He asked me what I thought, as a way of deciding whether he needs a lawyer. My instinct is to convince him to see a lawyer with expertise, but I'd like to be able to understand the situation so that I can point him to some resources or go along with him to consult with the lawyer and know what sorts of questions I should ask.

Thanks for any resources or advice you might have
posted by Caz721 to Law & Government (5 answers total)
but please assume for the question that Jay now holds a durable power of attorney regarding Max.

as a lawyer you know the pitfalls of assume.

I haven't seen the paperwork yet so I don't exactly know how this was done
another clue to your problem.

if you need a consult, 99 out 100 it is yes, you need a lawyer BUT, this case seems straight forward BUT you need to gather up all the paperwork and hash through it to see if it is something you can handle. I would suggest a lawyer who does work for the handicap or a legal service provider for your area so the $ does not go all to the lawyer....
posted by clavdivs at 11:22 AM on January 30, 2009

has some good advice.

if durable it can go from max to new designate but, well you know
posted by clavdivs at 11:27 AM on January 30, 2009

Jay should probably contact the Surrogate's Court in his county. I practice in this area on occasion, and have found the staff in the Surrogate's Court to be pretty knowledgable and quite helpful. This question implicates more than simply powers of attorney -- I suspect there's some guardianship questions involved, and Jay would be best served by narrowing down the issues before he decides whether or not he needs a lawyer.
posted by lassie at 11:55 AM on January 30, 2009

In every state that I know, a durable power of attorney expires when either the principal or agent does. It has no further effect.
posted by yclipse at 2:12 PM on January 30, 2009

What about contacting the lawyer who wrote whatever document that transfers the durable pwer of attorney over to Jay?
posted by JohnnyGunn at 7:59 PM on January 30, 2009

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