On December 15th, 2020, Governor Cuomo signed into law legislation substantially amending the New York General Obligations Law, which is the law that governs powers of attorney in New York. Effective June 13th, 2021, the new law, among other things, modifies the form of a power of attorney. The new form must be used beginning June 13th, 2021, however, a power of attorney drafted prior to the effective date is still valid. This article provides a brief overview of the key changes made by the new legislation.
Substantial Conformity
One of the nuances of the old law was that the form of the power of attorney signed by the principal (meaning you) needed to exactly match the wording of the form provided by the statute. For the unwary, a slight alteration to the form, in the wrong place, may have resulted in the form being considered a “non-statutory” form, thereby losing the protections of the statute. Under the new law, the form signed by the principal only needs to “substantially conform” to the wording of the form found in the statute. This leniency makes it much easier to rely on the statutory provisions benefiting powers of attorney, for instance, like imposing sanctions on those who unreasonably refuse to accept the power of attorney (as discussed below).
Elimination of Statutory Gifts Rider
A very cumbersome aspect of the old statute centered around the statutory gifts rider. The statutory gifts rider was necessary, and required, to allow your agent to exercise any power that might change your beneficial interest. For instance, to transfer your assets to a family member or to change beneficiary designations on your accounts, a statutory gifts rider would be necessary.
The statutory gifts rider was complex, but it was also often improperly implemented. For instance, for the statutory gifts rider to be effective, a box on the power of attorney needed to be initialed. Moreover, the statutory gifts rider needed to be signed at the same time as the power of attorney otherwise it was invalid.
The new law eliminates the statutory gifts rider. While this may appear to simplify things, great care must be taken to incorporate those modifications ordinarily found in a statutory gifts rider into the new power of attorney form. This is not a straightforward assignment and counsel must be sought.
Acceptance and Reliance by Others
A practical issue with powers of attorney is that many financial institutions might refuse to honor the form simply because it is not the form prescribed by their legal department. It has always been unlawful to unreasonably refuse to honor a valid statutory short form power of attorney, however, there were no consequences to doing so. Now, to encourage acceptance of the form, the new law imposes sanctions, such as legal fees, on those who unreasonably refuse to accept a valid statutory short form power of attorney. And to further encourage acceptance, a third party who reasonably accepts a power of attorney form properly acknowledged and witnessed shall not be held liable for any unauthorized transactions by agent.
Signing At the Direction of Another
Here is an interesting tidbit. In New York, one can direct another to sign a Last Will and Testament on one’s behalf. Similarly, the new law allows a power of attorney to be signed on behalf of the principal by someone other than the agent, in the principal’s presence and at the direction of the principal.
There are several other technical changes made by the new legislation that require the expertise of counsel who regularly practices in this area. The consequences of having an improper power of attorney may lead to an unanticipated guardianship proceeding which is where a judge will appoint someone to handle your affairs. The implementation of the new law is an opportune time to meet with us and review your overall estate plan.
Salvatore M. Di Costanzo is a partner with the firm of Maker, Fragale & Di Costanzo, LLP located in Rye, New York, and Yorktown Heights, New York. Mr. Di Costanzo is an attorney and accountant whose main area of practice is elder law and special needs planning. He is a member of the National Academy of Elder Law Attorneys and a frequent author and lecturer on current elder law and special needs topics. Since 2013, Mr. Di Costanzo has been selected each year by the rating service, Super Lawyers as a New York Metro leading elder law attorney. He can be reached at (914) 925-1010 or via e-mail at smd@mfd-law.com. Visit his practice specific website at www.plantodayfortomorrow.com.
