Can You Cancel the NY Durable Power of Attorney?

by Mark A. Krohn, Partner
Jacobowitz & Gubits, LLP

Did you know that you can give durable powers of attorneys to as many people as you choose? For example, you can give one to each of your children, and one to your lawyer.

Notwithstanding, it is generally not advisable to give out more than one durable power of attorney at any given time. Should you need to do so, you can easily cancel a durable power of attorney by “declaring” that it is canceled. You generally are not required to put the cancellation in writing, but simply announce that it is canceled to the holder. However, revocation in writing is preferable. Also, in practice it is advisable to get back all copies of the durable power of attorney if possible. You should give actual notice of the cancellation, in writing, not only to the holder but also to all those people and institutions you believe might be asked to honor the durable power of attorney.

When giving a NY durable power of attorney, there exist several opportunities to minimize your risks:

• Give a durable power of attorney to a third person, such as your attorney or friend, to hold until it must be used;
• Sign a “springing” durable power of attorney, which only becomes effective at the time you become incapacitated whereon it “springs into effect;”
• Name more than one person as an agent on your durable power of attorney and designate that they must act jointly. The problem with the last opportunity is that, in time of need, all agents must be located and must act together which can be impossible should one or more be unavailable for any reason.

Preparing a NY durable power of attorney is perhaps the single most important thing that one can do to protect their assets. However, the durable power of attorney is a powerful document and one should exercise great care in distributing same. In the event it becomes advisable to revoke a previously issued power of attorney, revocation in writing is preferable in addition to obtaining all copies back. Finally, actual notice of the cancellation, in writing, should be given to all those you believe may be asked to honor the power of attorney.