2009-09-18 / Columnists

Spotlight On Elderlaw

New York State Changes To Power Of Attorney Became Effective September 1, 2009
Commentary By Nancy J. Brady, RN, Esq. And Linda Faith Marshak, Esq.

The New York State legislature has enacted sweeping changes to the Power of Attorney law, which went into effect September 1, 2009. Power of Attorney documents executed in New York on or after September 1, 2009 will not be valid if the documents do not comply with the new law. Power of Attorney documents that were properly drafted and executed before that date will not be affected by the new changes.

Changes to the law require a set of documents which are much more complex than the short form power of attorney in effect under the old law. One major change, for example, is that the short form power of attorney cannot be revised to grant authority for one's agent to make gifts, or financial transfers of more than $500 per year. Gifts, or transfers of larger amounts can only be authorized in a rider (called the Statutory Major Gift Rider) to the power of attorney. The Power of Attorney and the Statutory Major Gift Rider must be executed at the same time. The Power of Attorney must be signed before a notary public, the requirements for the execution of the rider are more involved, the principal (individual completing the power of attorney) must sign before a notary public AND two witnesses (none of the individuals signing as notary or witnesses can be agents named on the forms).

Additional changes from the old forms call for several decisions to be made prior to executing, or signing the documents. The principal can specify if the agent under the power of attorney should be compensated, and can include a monetary amount. If the principal chooses, he/she can name a "monitor," or an individual to oversee the agent. The principal can decide in the Statutory Major Gift Rider the extent of the gift giving authority, including the class of persons to whom gifts can be made, and even if the agent can make gifts to him/herself. These decisions should be carefully reviewed with the principal's attorney.

Another major change is the requirement that the agent sign the document before a notary. The agent need not execute the form at the same time as the principal, however the document does not become effective until signed by the agent. In signing the document, the agent acknowledges his/her legal responsibilities to the principal. Those responsibilities are included in the document.

These changes to the law have created a much more complex undertaking in the completion of Power of Attorney documents. It is advisable for individuals who have not executed Power of Attorney forms in the past to complete the documents as soon as possible, with the involvement of an attorney who is familiar with the extent of the changes, and the proper completion and execution of the revised documents.

As we have seen all too often in our practice, when there is no power of attorney in place for an individual, and that individual is no longer capable of understanding and completing the necessary forms, their families are faced with lengthy, expensive, and emotionally draining guardianship proceedings.

The attorneys can be reached at 718- 945-7777 or 718-738-8500.

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