New York Implements Substantial Changes to Power of Attorney Law

This article was originally published January 15, 2021.

On December 15, 2020, Governor Cuomo signed into law a long-awaited bill regarding New York’s Power of Attorney form, which will take effect in the summer of 2021.

The new legislation aims to simplify the unwieldy Power of Attorney (“POA”) and corresponding Statutory Gifts Rider (“SGR”) forms, and to rectify issues that have arisen from their use. Substantial changes to the law include the following:

Currently, there are strict constraints against changing any wording on the statutory POA form, which would render the form invalid. Under the new legislation, a POA will be valid as long as it “substantially conforms to the wording” of the statutory form, and provisions that are not applicable to the principal may be omitted without rendering the POA invalid.
The SGR, which is currently a separate document executed in combination with the POA, will be included within the “Modifications” section of the POA. While currently there are two documents with separate execution requirements, there will be only one document requiring two witnesses, one of whom may also serve as the notary public.
Under the new legislation, a POA may be signed by someone other than the principal, at the direction of and in the presence of the principal. This is consistent with the requirements for signing a Will.
Third parties (with certain limited exceptions) will be liable for damages for unreasonably refusing to honor a notarized and witnessed POA, and may rely upon a certification by the agent named in the POA and an opinion of counsel as to any matter of law concerning the POA.
Third parties will also be obligated (subject to a reasonableness requirement) to accept any POA that was properly executed in accordance with the laws in effect at the time of its execution. This should address concerns with respect to “outdated” POAs.

It is anticipated that this new legislation will significantly simplify the POA form for clients and assist in smoother coordination with financial and other institutions.

Please note that no immediate action is necessary with respect to currently existing POA forms. The legislation makes clear that POAs executed in accordance with the law at the time of execution remain valid and enforceable. NYS has not yet issued a new statutory form, and it is not expected to do so until the summer of 2021.

If you have any questions regarding the new Power of Attorney legislation or any additional estate planning concerns, please contact Barbara E. Shiers at (212) 826-5526 or bshiers@fkks.com, Linda J. Wank at (212) 826-5546 or lwank@fkks.com, Adam J. Osterweil at (212) 705-4861 or aosterweil@fkks.com, or any other member of the Frankfurt Kurnit Estate Planning & Administration Group.