I hear this so often, "It's just a simple form.  We can just download it and do it ourselves."  Not so fast!

Legal forms are not simple fill in the blank papers that you can blithely fill out while watching your favorite sitcom.  And a power of attorney, the legal equivalent of a blank check and the keys to your house, car and everything you own, is no mere document.  With it your entire estate plan can be accomplished should you lose capacity.  Most people do not realize what an important document it is.

New York General Obligations Law (where the power of attorney statute is found) and the official form of the durable power of attorney, require that certain formalities be observed.  There are locations for initials to be used to signify choices and there are places for signatures that require a notary public and witnesses.  A recent case from the 4th Department (the New York appellate court for the western part of the state including Buffalo and Rochester) held a power of attorney invalid where the individual who signed the power of attorney (the "principal") had merely placed an "x" in the areas where initials were required, in spite of the fact that she signed where indicated.  The facts show that the principal was in the hospital at the time the power of attorney was signed; it is unclear who prepared the power of attorney and who supervised the signing, if anyone.  Very often a family member downloads something off the internet or a hospital worker provides a form.  The danger, of course, is that these situations happen frequently.  I see invalid powers of attorney all to often in my practice.

This case illustrates why you should not be engaging in "self-help" with these crucial decisions.  An invalid power of attorney may not be serious if the fault is discovered and the principal still has capacity and can sign a new document.  However, if the principal has lost capacity, her goals would be completely frustrated and there would be no opportunity to follow the principal's wishes unless the family had other indications of those wishes and a guardianship judge were assigned who was sympathetic.  That burden is considerably higher than the task of setting up appointments with a good attorney who can explain the process and prepare a tailored power of attorney as part of your overall estate plan.