A New York durable statutory power of attorney form allows an individual to transfer the authority of managing their finances to another person, and this authority persists throughout the principal’s lifetime.
The principal can bestow either specific or extensive powers upon their chosen representative, and the form remains legally valid even if the principal becomes incapacitated or unable to make decisions due to illness. Upon fulfilling the requisite signing criteria, the agent gains the ability to act on behalf of the principal and is obligated to present the form on every relevant occasion.
Laws
New York power of attorney forms are durable by default, so they’ll stay in effect even if the principal becomes incapacitated unless the document specifically states otherwise.
- Relevant Laws: New York Gen. Oblig. Law §§ 5-1501 – 5-1514 (Statutory Short Form and Other Powers of Attorney For Financial and Estate Planning).
- Presumed Durable: Yes, unless the form expressly provides that the principal’s incapacity terminates it. New York Gen. Oblig. Law § 5-1501A.
- Signing: Must be signed, initialed, and dated by the principal and signed by two disinterested witnesses (not the agent or someone who can receive gifts in the DPOA). New York Gen. Oblig. Law § 5-1501B.
- Notarization: None.
- Statutory Form: Yes – New York Gen. Oblig. Law § 5-1513.
New York law requires that your agent sign and date the form to accept their appointment.
Definitions
Durable – A power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal. (Gen. Oblig. Law § 1501A(1)).The subsequent incapacity of a principal shall not revoke or terminate the authority of an agent who acts under a durable power of attorney (Gen. Oblig. Law § 5-1501A(2)).
Power of Attorney – “Power of attorney” means a written document, other than a document referred to in section Gen. Oblig. Law § 1501C of this title, by which a principal with capacity designates an agent to act on his or her behalf and includes both a statutory short form power of attorney and a non-statutory power of attorney (Gen. Oblig. Law § 1501(J)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
In New York, the ability of an agent to make gifts on behalf of the principal is governed by the New York General Obligations Law, particularly sections § 5-1514.
The law allows an agent to make annual gifts up to the federal gift tax exclusion amount specified under section 2503(b) of the Internal Revenue Code, but only if the document explicitly grants this authority. The document must include a Statutory Gifts Rider (SGR) for gifts that exceed the annual federal exclusion limit.
Types of Gifts:
- Outright gifts to individuals: The agent can make gifts within the federal gift tax exclusion limits, provided the Power of Attorney includes a Statutory Gifts Rider for larger amounts.
- Consent to splitting gifts made by the principal’s spouse: This is permissible if the POA expressly provides for such authority.
Considerations:
- The principal’s overall estate plan and intentions.
- Potential impact on eligibility for Medicaid or other government benefits.
- The principal’s usual pattern of gifting.
Revocation and Termination:
Section § 5-1511 lays out revocation terms and conditions including the following:
Termination of Power of Attorney occurs when:
- The principal dies.
- The principal becomes incapacitated (if the power isn’t durable).
- The principal revokes it.
- The agent’s authority is revoked without a willing/able successor.
- The agent dies, becomes incapacitated, or resigns without a willing/able successor.
- The purpose of the power is fulfilled.
- A court order revokes it.
Agent’s Authority Ends when:
- Revoked by the principal.
- The agent dies, becomes incapacitated, or resigns.
- Divorce or annulment ends the agent’s marriage to the principal (unless stated otherwise in the power of attorney).
Recording Revocation:
- If the power of attorney has been recorded, revocation should also be recorded.
Effectiveness of Termination:
- Termination isn’t effective for third parties acting in good faith without actual notice.
- Termination isn’t effective for the agent until they receive the revocation.
- Previous powers of attorney are not revoked by executing a new one.
Principal Revoking Power of Attorney:
A principal can revoke their POA at any time, provided they are competent. This revocation must be in writing and should be formally communicated to the agent and any institutions or individuals who were relying on the authority of the POA.
Steps Needed to Revoke:
- Write a revocation notice, explicitly stating the termination of the POA.
- Notify your agent and any third parties using the POA of your decision.
- Retrieve all copies of the POA and ensure the revocation is recorded if the POA was filed with any government office.
Safekeeping and Registration
While New York does not have a statewide registry for POAs, it is critical to keep the original document secure and inform trusted individuals about its location.
For healthcare decisions, New York operates a separate Health Care Proxy law, which allows individuals to appoint someone to make healthcare decisions on their behalf if they are unable to do so.
How to Write
Step 1 – Download the Necessary Forms
- Start by accessing a New York Durable Statutory Power of Attorney form.
Step 2 – Fill in the Designation of Agent(s)
- Begin the form by identifying the principal (yourself) and the agent (the person you are granting authority to). Enter the full legal names, mailing addresses, and cities for both.
- If appointing more than one agent, specify this and indicate whether they can act separately or must act jointly.
- For successor agents (backups in case the primary agent can’t serve), provide their details and specify how they can act.
Step 3 – Granting Authority
- In the “Grant of Authority” section, meticulously review and initial next to the powers you’re granting to your agent. These can range from handling financial transactions to making healthcare decisions.
- If you wish to grant a comprehensive authority covering all listed powers, utilize section “(P)” to indicate this instead of initialing each item.
Step 4 – Modifications and Special Instructions
- Use the “Modifications” section to add any specific instructions not covered elsewhere in the document. This could include limitations on the agent’s authority, specific conditions under which the POA becomes effective, or revocation of previous POAs.
Step 5 – Appointing a Monitor (Optional)
- If desired, appoint a monitor to oversee the agent’s actions. Provide the monitor’s full name and address, and initial to confirm this appointment.
Step 6 – Principal’s Signature
- The principal must sign and date the form in the presence of a notary public to acknowledge and validate their intent. This section confirms the principal’s understanding and agreement with the document’s terms.
Step 7 – Witness Acknowledgment
- Two impartial witnesses, not named as agents or recipients in the document, must sign and provide their details, further verifying the principal’s voluntary and competent signing.
Step 8 – Agent(s) and Successor Agent(s) Acknowledgment
- Each appointed agent and successor agent must read the sections detailing their roles and responsibilities, then sign and acknowledge their acceptance of these duties.
Additional Resources
- The New York State Bar Association and New York City Bar provide resources and guides related to Powers of Attorney in New York.
- Law Help NY offers assistance and information on managing POAs and their implications in New York.
