The Clean-Up: New York Power of Attorney Overhauled Again

As of September 12, 2010, New York’s Power of Attorney, having undergone a major revision just last year, has been amended  to clear up the confusion and unintended consequences of last year’s major overhaul of the power of attorney form.  All prior powers of attorney are still valid.

One important change is that revocation of prior powers of attorney is no longer the default provision, instead, in order to revoke a previous power of attorney a note must be inserted in the modifications section.

Powers of attorney serving primarily for a business or commercial purpose no longer need to use the format under the statutory power of attorney law.  The exceptions are enumerated in NY General Obligations Law Section 5-1501C and primarily exclude commercial, corporate and governmental transactions; proxy voting rights; financial institutions, real estate brokers; service of process; and decisions about health care and disposition of remains.

Other significant changes include the removal of the word “major” from the statutory gifts rider, referring now to “certain” gifts as opposed to “major” gifts. This eliminates confusion caused by those who did not find aggregate gifting of $500 annually major.  It is still ambiguous as to whether the rider needs to be utilized to make gifts or changes to interests in real property.

The new rules clarify how the  principal can revoke a power of attorney if the principal cannot locate the agent to give him or her notice.

Finally, the power of attorney can now provide for specific agent successor rules where as before it had been required that every agent be unable to act before a successor would be allowed to act.

Although total revocation of the Statutory Major Gift Rider would have been a better strategy, these amendments go a long  way to clear up some of the confusion caused last year.

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