A power of attorney, abbreviated as a POA, is a term that is pretty common in the legal and healthcare sector. The document is used as a way for you to ensure that your personal and official decisions and obligations are designated to someone you trust. Senior citizens popularly utilize POA forms to assign an agent as a custodian or guardian of the estate, financial matters, or a decision-maker in healthcare emergencies. The party delegating legal authority or power is the principal, and the appointed party is termed an agent or attorney-in-fact. To provide further insight into a power of attorney, this article will discuss the different types of POA, the requirements of the POA form, and provide a guide on how to acquire a power of attorney form in New York.
A New York Power of Attorney is a legal form that allows you to transfer your legal authority to another party (individual or organization) who wish to act on your behalf if the assigning party (principal) be unable to exercise the specified legal authority due to reasons such as incapacitation or death.
The document is governed by the New York state laws and must satisfy the state requirements to be valid. Examples of duties assigned through a power of attorney form for New York include filing taxes, deposit/withdrawing bank deposits, managing or distributing the estate, and making healthcare decisions.
Types of POA in New York
Power of attorney form in New York will vary depending on duration, purpose, and extent of power to cater to principals’ requirements in different situations. As a result, there are different types of New York power of attorney form.
They include:
Durable (Statutory) Power of Attorney
A durable POA is unique because it grants the agent the power to carry out the specified duties until the principal revokes it or passes away. The document can thus be used even when the principal becomes incapacitated. In addition, the principal cannot revoke a durable power of attorney when they are deemed not to be of sound mind. The following laws govern a durable power of attorney from in New York - General Obligations, Article 5, Title 15 (Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning). Principals can use either of the following versions of a durable POA; the standard (short-form) version, New York State BAR Durable Power of Attorney, or Home Instead Durable Power of Attorney.
Download: Microsoft Word (.docx)
General (Financial) Power of Attorney
The distinguishing property of a general (financial) power of attorney gives the agent powers to undertake financial decisions on behalf of the principal as long as they are not hindered – unlike a durable power of attorney. This type of New York power of attorney is governed by the Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning (§§ 5-1501 — 5-1514). At least two witnesses and the respective notary public must witness the document.
Download: Microsoft Word (.docx)
Limited Power of Attorney
A limited power of attorney form in New York is used when the principal wants to transfer their legal authority to the agent for a limited and specific period. Therefore, this type of POA is useful for principals who intend to be temporarily unavailable and want another reliable party to undertake specific duties on their behalf. The following statutes in New York govern such a POA - Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning (§§ 5-1501 — 5-1514).
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Medical Power of Attorney
The legal authority to make healthcare decisions can also be transferred to a third party through a medical power of attorney. Such a document through Article 29-C of the Public Health Law and Article 29-C (Health Care Agents and Proxies) appoints an individual to prioritize the principal’s best interests in terms of healthcare if they are incapable of making such decisions. The POA form must be signed with two witnesses following (PBH § 2981(2)).
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Minor (Child) Power of Attorney
Parents are the legal guardians of their children under the law. Therefore, if a parent in New York intends to be away from their child(ren) and thus wants to transfer the guardianship obligations to another party, they must do so using a New York minor (child) power of attorney form. The document should specify the duration and extent of legal powers. Some of the decisions conveyed through this type of POA are related to the minor’s health, finances, and education. According to (GOB § 5-1501B), the document must be signed by two witnesses and the notary public.
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Revocation of Power of Attorney
On some occasions, the principal may be necessitated to terminate an existing power of attorney form for New York due to various reasons such as incompetency, fallouts, or demise of the agent. In such instances, a revocation of the power of attorney form is used to revoke the stipulations of the existing POA. Once completed, a copy of the document is sent to the agent and other parties who may be relying on the original POA. Once filed, the agent ceases to have the legal authority to undertake the mentioned duties, and a new agent can be appointed.
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Real Estate Power of Attorney
Property owners in New York can grant another party the rights to a property such as land through a real estate power of attorney. It is created under the Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning (§§ 5-1501 — 5-1514). The form stipulates what rights the appointed agent has regarding decisions and actions. Such a POA can be used to sell or purchase property through an attorney-in-fact. Once completed, it must be witnessed by two witnesses and notarized.
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Tax Power of Attorney (Form POA-1)
Principals can appoint a tax professional or any other capable party to file taxes or handle matters associated with the Department of Taxation and Finance in New York. Typically, this type of POA is used to appoint an accountant or tax lawyer. The form should indicate the agent’s New York Tax Preparer Registration Number to authenticate their qualification to associated entities such as New York state tax authorities.
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Vehicle Power of Attorney
Individuals can appoint third parties to represent them in matters related to a vehicle sale, purchase, or registration through a New York vehicle power of attorney from. The document is used at the New York DMV. It must declare the principal (vehicle owner), agent, vehicle description, and specific actions the agent is allowed to undertake. As a result, it is considered a limited POA.
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Springing Power of Attorney
A springing New York power of attorney is a type of POA that only becomes effective after a specific event such as incapacitation, physical disability, etc., or at a specified time in the future.
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New York POA Requirements
For a POA form New York to be considered legally enforceable, it must satisfy specific state requirements. Firstly, the document must be signed and dated by the principal, agent(s), applicable witnesses, and notary public. Secondly, the principal should be of sound mind when filing the document. Finally, the New York power of attorney is a legal document and should use specific legalese required by the statutes. Principals can use the POA form provided by the state to ensure it satisfies this requirement.
Additionally, the New York power of attorney must be typed in front of no less than 12 pt. size. Signatories to the document are also allowed to appoint parties to sign the POA on their behalf; this is more so in a fiduciary capacity such as trust and trustees. In such cases, proof of authorization and proper identification must be provided. Principals should also note that a power of attorney form in New York is considered durable unless stated otherwise. If a non-durable is required, it must be specified in the document.
Essential Factors to Know About POA
A New York power of attorney form that sufficiently and effectively addresses the principal’s needs ought to consider certain aspects.
These aspects have been discussed below:
Confirm your state’s requirements
An influential New York power of attorney form is expected to comply with the state’s requirements. The first step should thus be to identify all the mandated requirements. Most requirements are based on the document’s signing, dating, acknowledgment, and statutory language.
Consider naming more than one agent
It is always considered wise to name at least two agents in a power of attorney – the primary agent and successor agent. This is because certain unprecedented events such as relocation, demise, or incapacitation can render the primary agent incapable of undertaking their assigned duties. In addition, having a successor agent ensures that the principal’s interests are prioritized, and someone can step in when one agent is unavailable.
If the agent does not act in your best interest
There is a worry that the agent may not act in the principal’s best interest when using a power of attorney. Therefore, it is reasonable to take precautions like appointing someone to monitor the agent’s actions and request and verify documents of the agent’s activities. However, even without the extra precautions, an attorney-in-fact has a fiduciary duty to act at the principal’s best. Failure to do so may prompt the principal, their spouse, child, or parent to take legal action against the agent.
POA may not provide sufficient digital assets authority
It is important to note that a power of attorney for New York may not offer the legal framework required for an agent to access a principal’s digital assets such as emails or passwords to email addresses and online accounts.
This provision must be explicitly declared in the form according to the Revised Uniform Fiduciary Access to Digital Assets Act (2016). This statute governs aspects such as what is defined as a “catalog of electronic communications” or “content of electronic communications.” The latter includes details such as the subject and text of an email, while the former refers to the sender’s details, time, and date.
New York POA’s scope is limited without gift rider
New York has legally limited the scope of a power of attorney and, consequently, an agent’s authority from gifting or transferring the principal’s assets unless a gift rider accompanies the document. Accordingly, agents of a New York power of attorney form cannot gift or transfer assets valued at more than $500 per year.
However, the agent has the full legal authority to make gifts with a gift rider. Other limitations are that the agent cannot access funds in the principal’s retirement accounts, modify an estate plan, and redirect life insurance, retirement funds, or annuities to another beneficiary without a gift rider.
Financial institutions may not honour the POA
For a POA form New York to be legally enforceable, it must be universally acceptable. Some entities, such as financial institutions, may fail to honor a POA, primarily when they cannot authenticate the document. They are legally liable if they grant access to unauthorized parties.
Therefore, they may require the principal to use their POA forms to avoid hindrances in the future. Therefore, it is advisable to use the statutory New York power of attorney as it is deemed universally acceptable, and financial institutions are lawfully required to accept it unless other causes of alarm can be ascertained.
POA may need to be re-executed after several years
It is advisable to re-execute a power of attorney from in New York after several years as some financial institutions may question the validity of a POA if it was executed a long time ago. This is because the circumstances that necessitated the POA in the past may not be applicable in the present day.
Alternatively, the principal can set up a revocable or irrevocable trust whereby the trustee can provide a trust document to accompany the POA whenever it is required. The POA does not have to be re-executed every several years in such a case.
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How to Get Power of Attorney Form in New York?
The state of New York provides a statutory short form POA that complies with all the state’s requirements. The form can be obtained from the state department site. Once the form has been obtained, the principal can appoint the agent(s). The form can then be completed by outlining the legal functions transferred to the agent(s).
If there are two agents, the document must declare if they are required to act together or separately. The signatories should then sign a New York power of attorney form, and each party should get a copy. Finally, all parties or entities affected by the POA should be informed of the document’s existence.
Frequently Asked Questions
A durable and springing POA is often utilized when an individual wants to plan for a future where they become incapacitated or incapable of making sound decisions regarding their finances and health, for example, due to a tragic accident or Alzheimer’s disease.
In New York, a POA is deemed durable unless otherwise specified. However, if a POA is explicit, not implied, it must be titled Durable Power of Attorney, New York Statutory Short Form
A power of attorney form in New York can be utilized for many functions in estate planning, financial, and healthcare matters. Some of the standard functions transferred to an agent include the legal authority to buy/sell real estate, manage a property, file taxes, manage finances, make investment decisions, medical decisions, and gift or transfer property.
No. the document used to grant an agent to make healthcare decisions on behalf of a principal is referred to as a medical POA or Healthcare Proxy. The state of New York provides this form separately from a statutory POA under Article 29-C of the New York Public Health Law.
Principals should appoint people they trust as their agents. This is because of the sensitivity of the matters designated using a power of attorney. Therefore, an agent can be a spouse, sibling, close friend or family member, or professional such as a lawyer.
Yes. There are no limitations to the number of agents a principal can appoint through a power of attorney form NY. The agents can operate independently or jointly. The responsibilities of each agent should be explicitly stated. Appointing multiple agents has the benefit of allowing oversight and thus guaranteeing that the primary agent prioritizes the principal’s best interests.
An agent is expected to act in the principal’s best interests. The agent is considered a fiduciary, meaning they owe the principal loyalty, honesty, and integrity. The agent should not be self-dealing – prioritizing their interests over the principal. The agent must also be accountable to the principal, which will often require an accurate record of all activities performed by the agent.
Legally, the agent is accountable to the principal, and the principal is responsible for overseeing the agent. However, the principal can appoint a third party to oversee the agent if the principal is incapable of doing so themselves or passes on. If the principal passes on, their family whose interest aligns to that of the principal can hold the agent accountable should they misuse the powers awarded to them through a power of attorney form NY.
If the agent abuses their power or is incompetent in fulfilling their duties, the principal holds the right to revoke the New York POA through revocation of POA form, which is filed with the County Clerk. This should be followed by requesting the agent to hand over all the copies of the original POA. The principal can also notify any institutions where the original POA was used that the document has been revoked.
No. a principal can complete the New York statutory power of attorney form, sign it, and it would still be legally enforceable. However, they can consult an attorney to ensure if the specifics have been effectively captured.
