New York State’s New Statutory Short Form And Other Powers Of Attorney For Financial Estate Planning
February 28, Important Update: Governor Paterson has signed the Power of Attorney extender legislation into law making the effective date for the new Power of Attorney legislation September 1, 2009 and not March 1, 2009. (See Part Three in this discussion series). The justification, given by the legislature, is that the new law “provides a comprehensive change in the law regarding power of attorney requirements, additional time is needed to educate the legal community regarding this change. Therefore, the enactment date is changed to September 1, 20091”
By: Aaron E. Futterman, CPA, Esq.
Signed into law on January 27, 2009 and effective March 1, 2009, new laws will now regulate the content, powers, and requirements for valid powers of attorney in New York State. These new laws provide the following:
- Definitions and general requirements for valid powers of attorney,
- Duties of the agent,
- Requirement of the agent to sign the power of attorney form,
- Procedures for the revocation of the power of attorney, and
- Civil proceedings with respect to powers of attorney.
These new laws apply prospectively and apply to all powers of attorney executed on or after March 1, 2009. The new laws do not affect the validity of any power of attorney contained in a power of attorney executed prior to March 1, 2009 if the power of attorney was valid at the time of its execution. However, the new laws will impact the powers and duties of the previously appointed agent.
Requirements for a Valid Power of Attorney
To create a power of attorney under the new laws, the power of attorney must:
- Be typed with lettering at least twelve (12) point in size or, if printed (handwritten), using letters which are legible or a reasonable equivalent of twelve (12) point typewritten letters.
- Be signed and dated by a principal, with capacity, in front of a notary public.
- Be signed and dated by the agent, or agents if two or more agents are designated to act jointly, in front of a notary public.
- Contain the exact wording of the “Caution to the Principal” and “Important Information for the Agent” as provided in the statutory short form power of attorney (see this language below in bold type).
The new laws provide a standard form power of attorney that anyone is free to use. If the principal desires to use a power of attorney not in the form provided, however, to validly execute it, the requirements above must be followed and, in addition, the principal must execute (i.e., sign) the power of attorney in the same manner as a Last Will. The principal must either:
- Sign the power of attorney in front of two disinterested witnesses (the witnesses cannot be named as permitted recipients of gifts or transfers), or
- Acknowledge that the signature on the power of attorney is his or hers to the two witnesses (this may be done separately to each disinterested witness), or
- Acknowledge that the signature on the power of attorney was made at the principal’s direction to the two disinterested witnesses (i.e., for instance, a quadriplegic directing that his hand (holding a pen) be dropped on the signature line).
Extender legislation, which delays from March 1, 2009 until September 1, 2009, the effective date of amendments to the provisions of law providing for powers of attorney passed both the New York State Assembly and New York State Senate.
This legislation is now before Governor Patterson for his approval. The website will be updated if and when he signs the bill into law. Please visit back again soon and, if you are a new visitor to our website, welcome, and please read our previous two discussions of the new laws affecting Powers of Attorney.
Coming soon in future articles, Futterman & Lanza, LLP will discuss in more detail these new laws and how these new laws will affect and impact principals and agents. As always, if you have any questions about these new laws and how they may affect you or your family please contact Futterman & Lanza at 631-979-4300.