Holding Court: Power of Attorney, Part 2

Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.

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By Joe Latwin

Powers of Attorney – Part 2. If you missed it, read Part 1.

Now that you made the wise decision to have a power of attorney, you need to consider what powers you wish to grant to your agent and whom you name as agent.

The statutory short form lists the more common powers that the agent may be given the power to exercise:

(A) real estate transactions;

(B) chattel and goods transactions;

(C) bond, share, and commodity transactions;

(D) banking transactions;

(E) business operating transactions;

(F) insurance transactions;

(G) estate transactions;

(H) claims and litigation;

(I)  personal and family maintenance (including to make gifts that you customarily have made to individuals, including the agent, and charitable organizations where the total amount of all such gifts in any one calendar year cannot exceed five thousand dollars;

(J) benefits from governmental programs or civil or military service;

(K) financial matters related to health care; records, reports, and statements;

(L) retirement benefit transactions;

(M) tax matters; &

(N) full and unqualified authority to my agent to delegate any or all of the
foregoing powers to any person or persons whom my agent select.

There are a number of modifications that can be made to the statutory short form that may be pertinent to your situation and should be considered:

• Nomination of a person to serve as your guardian;
• Allowing gifting to spouses, and descendants up to the amount of the federal gift tax exclusion or up to a specified dollar amount, or an unlimited amount;
• Allowing the agent to make gifts to the agent;
• Opening, modifying or terminating a deposit account in the name of the principal and other joint tenants;
• Changing the beneficiary or beneficiaries of any contract of insurance on the life of the principal or annuity contract for the benefit of the principal;
• To make transfers and additions to any trusts already in existence; withdraw income or principal on my behalf from any trust; exercise whatever trust powers or elections which I may exercise or to create trusts or accounts;
• To convey interest in the real property or cooperative apartments, paying off any liens of the said premises, paying all expenses related to the sale of the said premises;
• To make Loans and execute promissory notes;
• To compensate the agent for services in handling financial matters;
• To access, use, and control digital devices and digital assets (think email accounts, digital music, digital photographs, digital videos, software licenses, social network accounts, file sharing accounts, financial accounts, banking accounts, domain registrations, web hosting accounts, tax preparation service accounts, online stores, affiliate programs, etc.) and control passwords and other electronic credentials associated with digital devices and digital assets;
• To commence, continue, assert, prosecute, defend, litigate, mediate, arbitrate, negotiate, settle, stipulate, compromise, offset, counterclaim, attest, and represent my interests in all civil actions, lawsuits, and proceedings, including administrative proceedings, on my behalf and represent my interests against and with any and all creditors;
• To retain and pay for the services of an attorney to represent my interests in any action, lawsuit, or proceeding and to represent my interests in protecting and maximizing my benefits, including but not limited to Medicaid, Medicare, and or any other benefits;
• To waive the attorney-client privilege and other similar privileges on my behalf between my agent(s) herein appointed and my attorney(s) and other advisor(s);
• To arrange, hire, pay for, supervise and discharge the services of all health care and health related service providers, including aides, companions, home care service providers, and caretakers;
• To hire, retain, discharge, and pay for the services of attorneys, accountants, bookkeepers, financial planners, tax preparers, payroll management services, professional organizers, and all other service providers and professionals;
• To represent all of my right, title and interest in and to any corporation, business, partnership, company, or entity;
• To provide and care for any pet(s) and to use my income and or assets to purchase, care for, and provide for my pet(s);
• To represent interests with the Internal Revenue Service, including the power to execute IRS Form 2848, Power of Attorney and Declaration of Representation;
• To represent interests with the New York State Department of Taxation and Finance, including the power to execute form POA-1;
• To make and pay for pre-need funeral, burial/cremation and other post-death arrangements, including but not limited to purchasing and entering into revocable or irrevocable pre-need funeral, burial/cremation and post-death agreements and contracts, and to make and pay for pre-need funeral, burial/cremation and other post-death arrangements, including but not limited to purchasing and entering into revocable or irrevocable pre-need funeral, burial/cremation and post-death agreements and contracts for my Spouse, my Children, and my Child(ren)’s Spouse(s);
• To transfer, gift, convey, sell, or assign any or all property, including real, personal, digital, and intellectual property that my agent(s) deems to be in my best interest and for my benefit, considering my financial, estate, and/or tax planning objectives, the minimization of income, estate, inheritance, generation-skipping, transfer, or gift taxes as well as asset protection planning in the context of medical assistance, long term nursing or home care, Medicaid planning, or for whatever purposes my agent(s) deems appropriate and to execute all documents to effectuate such transfer, gift, conveyance, sale or assignment;
• To donate to any charity consistent with my history of giving and or estate planning objectives. To make and complete charitable pledges consistent with my history of giving and or estate planning objectives; and
• To sell, transfer title to, or donate any automobile(s) or other motor vehicle(s) I own or lease.

This list of modifications is not exclusive and should be tailored to your particular circumstances.

The other big choice is who you name as your agent. This is related to what powers you grant your agent. My recommendation is always to give your agent the broadest powers that may be needed to manage your affairs. If you were going to Europe for a month, who would you trust to act in your place? If you don’t trust someone, don’t make them your agent. I you trust them, give them all the powers they may need to handle your affairs.

The POA must be signed by the principal and two witnesses before a notary.

Since most institutions require an original POA, multiple originals should be executed – I recommend one original for each bank or institution with whom you do business, plus one more original to be recorded in the County Clerk’s Office (since certified copies of a filed POA will be accepted).