The New York State Bar Association has the new POA and SMGR forms for download in Word or Wordperfect, along with suggested clauses for the Modifications sections.  The forms cost $20 but are free for NYSBA members.

You can download the forms here.  I also posted a link under the blog’s “Links & Resources,” a page I will add content to as I go along.

Related posts:

1. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer
2. Will New York revise the power of attorney law again?
3. New York’s revised power of attorney statute (#2)
4. New York’s new power of attorney law
5. Power of attorney created under the old New York statute still valid after 9/1/09

Back in June, two and a half months before the effective date of the statute, the New York State Assembly passed Bill No. A8392-A, which made some “technical corrections” to the statute and the statutory forms. Unfortunately, the State Senate was too busy bickering over Senate leadership to notice much of anything, least of all some technical corrections.

The bill passed by the Assembly clarifies some of language in the statute, including some changes to the statutory short form and the statutory major gifts rider. It also makes a few subtle but significant changes to the law.

For instance, the current new law states that unless the principal expressly provides otherwise, the execution of a power of attorney revokes all prior powers of attorney executed by the principal. The Assembly bill flips that around, and provides that the execution of a POA does not silently revoke all prior powers of attorney unless the principal gives written notice to the previously appointed agent.

Another change is in the limits to gifts an agent can give using the power of attorney – i.e., what the statute considers a non-major gift. The current statute allows the continuation of the principal’s customary gifts, with a limit of $500 per person or institution per year. For larger gifts, a statutory major gifts rider must be executed. The Assembly’s latest revision limits the total of all gifts taken together to $500.

These proposed changes are reflected in changes to the text of the statutory short form and the major gifts rider. So if the bill ever passes the Senate, the forms will have to be revised again. Add that to the list of results of the ridiculous power struggle in Albany.

Related posts:

1. New York’s revised power of attorney statute (#2)
2. Power of attorney created under the old New York statute still valid after 9/1/09
3. New York Power of Attorney and Statutory Major Gifts Rider forms
4. New York’s new power of attorney law
5. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer

Below is a scanned copy of an article I wrote for the Nassau Lawyer, published by the Nassau County Bar Association.

Clicking on the image will enlarge it in your browser.

SE

Related posts:

1. New York Power of Attorney and Statutory Major Gifts Rider forms
2. Will New York revise the power of attorney law again?
3. Power of attorney created under the old New York statute still valid after 9/1/09
4. New York’s new power of attorney law
5. New York’s revised power of attorney statute (#2)

A point of clarification, since several people have asked. A valid New York power of attorney created prior to September 1, 2009, will remain valid after September 1, 2009. You don’t have to re-appoint an agent using the new statutory short form. The requirements of the new POA statute apply only to powers of attorney created on or after September 1, 2009.

Several statutory changes will apply to all powers of attorney, regardless of whether they were created before or after September 1, 2009. These include provisions requiring acceptance by all third parties, establishing the standard of care for the agent or attorney-in-fact, and providing for a special proceeding to compel third parties to accept the POA.

SE

Related posts:

1. New York’s revised power of attorney statute (#2)
2. Will New York revise the power of attorney law again?
3. New York’s new power of attorney law
4. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer
5. New York Power of Attorney and Statutory Major Gifts Rider forms

The New York State Senate passed the Assembly’s bill delaying the effective date of the new Power of Attorney law until September 1, 2009.

Forget the Oscars. This is the real stuff of drama.

Related posts:

1. Will New York revise the power of attorney law again?
2. Power of attorney created under the old New York statute still valid after 9/1/09
3. New York’s revised power of attorney statute (#2)
4. New York’s new power of attorney law
5. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer

Among the requirements of the new statute:

• The principal must execute a Statutory Major Gifts Rider (SMGR) if he or she intends to authorize the agent to give gifts over $500 per year to any individual or institution.

• The agent must sign to acknowledge the assumption of legal responsibility.

• All third parties must accept the Power of Attorney, absent reasonable cause to reject it. The previous statute only required acceptance by banks, credit unions, pension funds, and retirement systems, leaving brokerage firms and mutual funds, among others, free to ignore the statutory short form.

• The revised statute also provides for a process for obtaining a court order compelling a third party to accept the Power of Attorney.

The article concludes:

This document was also used by a large number of individuals who purchased the forms and executed them without the advice of an attorney. The most profound practical effect of the new statute is the possibility that the power of attorney has become so complicated that it can only be executed under the supervision of an attorney. The statutory short form and SMGR will be a minimum of six pages long. The technical requirements are so numerous that the risk of error leading to an invalid power of attorney is high.

As I noted in my earlier post, there is now only one statutory short form in New York. By default it is a durable power of attorney; it must be modified to be nondurable or springing. Unlike the model form contained in the Uniform Power of Attorney Act, the statutory short form does not even alert the user to the possibility of making it effective only at a later date. Non-lawyers doing it on their own in New York after March 1 or September 1 will probably be even less likely to think about restricting their Powers of Attorney to fit their circumstances. If they do consider restrictions, they will have to modify the form themselves.

Practitioners who use non-statutory Powers of Attorney should note that certain statutory requirements under GOL § 5-1501B will now apply to all Powers of Attorney executed in New York, including the requirement that they contain the exact wording of the “Caution to Principal” and “Important Information to the Agent” contained in the new statutory short form.

Related posts:

1. Power of attorney created under the old New York statute still valid after 9/1/09
2. Will New York revise the power of attorney law again?
3. New York’s new power of attorney law
4. New York Power of Attorney and Statutory Major Gifts Rider forms
5. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer

Note that the phrase “attorney-in-fact” has been replaced in the statute and the short form with “agent” — this is in accordance with the Ferrara decision (7 NY3d 244 (2006)) holding that an attorney-in-fact is a fiduciary and must act in the principal’s best interest.

Oddly, though, no one seems to mention that beginning March 1, 2009, New York will have one power of attorney short form, not three. The power of attorney can be durable, nondurable, or springing. But unless otherwise specified in the Modifications section, the power of attorney is durable.

Related posts:

1. New York’s revised power of attorney statute (#2)
2. Power of attorney created under the old New York statute still valid after 9/1/09
3. Will New York revise the power of attorney law again?
4. New York Power of Attorney and Statutory Major Gifts Rider forms
5. “Major revisions to New York Power of Attorney Law” in the Nassau Lawyer