William LaPiana on the New York Power of Attorney Amendments

In this Analysis, William LaPiana discusses the controversy over the 2009 amendments to New York's Power of Attorney law, sets forth the new amendments to that law, and provides forms for the Statutory Short Form Power of Attorney and the Statutory Gifts Rider that will be effective if the amendments are passed as expected. He writes:

     On September 1, 2009 a new power of attorney law made up of several new and amended sections of the General Obligations Law came into effect. The new statutory scheme differs in many ways from the old power of attorney statute, although the statutory short form survives as the centerpiece of the statutory scheme. Unfortunately, as of late May 2010 the extent and nature of these differences is not settled. Soon after the law was passed, questions about some of its provisions as well as a growing appreciation of the extent of the changes to current law led the legislature to postpone the effective date of the changes from March 1, 2009 to September 1 of the same year.1 The Law Revision Commission, in consultation with the Trusts and Estates Law Section of the New York State Bar Association and other organizations, recommended the enactment of significant technical corrections to be effective on the postponed effective date. The resulting bill passed the Assembly by a unanimous vote on June 15, 2009. A companion Senate bill was introduced on June 18, but action on the bill was delayed by the well-publicized Senate stalemate.

     The new power of attorney law became effective, therefore, on September 1, 2009. By that time dissatisfaction with many of its provisions was wide-spread and vocal. The discontent was driven in great measure by (1) the conclusion by some title insurance companies that every real estate transaction in which a party is acting through an agent appointed in a power of attorney, the power of attorney must be accompanied by a Statutory Major Gift Rider (SMGR), (2) the belief that the new law applies to every power of attorney executed in the state, even if the power of attorney has nothing to do with property management, and (3) unhappiness with the complexity of the statutory form and especially of the SMGR.

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POWER OF ATTORNEY

NEW YORK STATUTORY SHORT FORM

(a) CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document. As the "principal," you give the person whom you choose (your "agent") authority to spend your money and sell or dispose of your property during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority. When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest. "Important Information for the Agent" at the end of this document describes your agent's responsibilities. Your agent can act on your behalf only after signing the Power of Attorney before a notary public. You can request information from your agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to any third parties who may have acted upon it, including the financial institutions where your accounts are located. You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound mind, a court can remove an agent for acting improperly. Your agent cannot make health care decisions for you. You may execute a "Health Care Proxy" to do this. The law governing Powers of Attorney is contained in the New York General Obligations Law, Article 5, Title 15. This law is available at a law library, or online through the New York State Senate or Assembly websites, www.senate.state.ny.us or www.assembly.state.ny.us. If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you.

(b) DESIGNATION OF AGENT(S):

I, _____________________________________________, hereby appoint: name and address of principal _____________________________________________________as my agent(s)

name(s) and address(es) of agent(s)

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