A New York power of attorney (POA) is a legal document that gives a designated person, termed an agent, the power to act for another person. The POA document defines the extent of the authority given to the agent.
Powers of attorney should never be granted casually since they have critical ramifications for the parties involved. In New York, POAs are regulated by state laws that control how they are created and what they can be used for.
What Is a Power of Attorney?
A power of attorney is a legal document, also termed a POA. In the document, one person grants to another person the right to act for them. The person making the document is termed the principal, and the person named to act for them is called the agent or the attorney in fact. In New York, the most common powers of attorney relate to legal, financial or tax matters.
The extent of the authority granted to an agent must be specified in the document. A principal can grant wide-ranging authority through a New York power of attorney, like authorizing the agent to make all decisions about the principal's property and asset management.
But not every POA conveys broad authority. The POA also can be used for a very specific and limited purpose, like allowing an agent one-time authority to sell the principal's vehicle or real estate.
Limitations of PoAs
Despite the flexibility of authority in a New York POA, this document is not appropriate for use in every situation. In fact, not every action can be delegated via a power of attorney. For example, a POA cannot authorize an agent to vote in place of the principal or to sign a will for them.
And though people talk about the New York medical power of attorney, that actual legal document is called a New York health care proxy, although it operates in much the same way as a POA.
Understand Powers of Attorney
It's important to get an overview of New York POAs before creating one. One basic factor is that the principal is completely free to manage their own business to the extent they wish to, while they remain competent.
The agent simply has authority to act if the principal is not available. And a principal can, at any time, cancel the POA simply by informing the agent in writing that they are revoking the authority.
Unless an attorney is involved in creating the POA, it is best to make use of the free POA statutory short form available. The form has been incorporated into the statutes and can be found in the code online or at a law library at General Obligations (GOB) Chapter 24-A, Article 5, Title 15. Be sure to use the most recent version that will contain all necessary terms and conditions.
Types of Power of Attorney Documents in New York
In New York, different types of powers of attorney can be used by the principal, depending on the authority they wish to give to their agent. The primary types of powers of attorney used in New York state are:
- General power of attorney: The broadest power of attorney, granting the agent authority to perform all acts that the principal can do that the law permits to be delegated. In essence, a general POA agent stands in for the principal in all things including filing tax returns, signing contracts and borrowing money.
- Durable power of attorney: Like a general power of attorney, but survives in cases where the principal becomes incapacitated. In New York, all POAs are durable unless specifically stated in the document that they are not.
- Limited power of attorney: Restricted power of attorney that confers only the narrow authority expressly described in the document.
- Emerging power of attorney: Power of attorney that becomes effective upon the occurrence of a triggering event as described in the POA document. Typically, this event is the mental or physical incapacity of the principal.
- Medical power of attorney: General power of attorney restricted to health care decisions. It becomes effective if and when the principal is no longer able to manage their own medical care. In New York, it is a separate legal document called a health care proxy.
Who Can Be an Agent in New York?
Despite the name "power of attorney," an attorney need not be named as the agent in a POA. In the state of New York, an individual can select any person over the age of 18 years who is "of sound mind." This means, basically, competent.
New York law requires that the person making a power of attorney be able to understand "the nature and consequences" of the POA. (N.Y. Gen. Oblig. Law Section 5-1501(2)(c).)
What this means exactly is left to the interpretation by New York courts. But the choice of a POA agent, or attorney in fact, is important. A principal must be able to trust their agent before assigning them authority to act. That is why many people select close family members or friends as their attorneys in fact. However, that is a personal preference, not a legal requirement in New York.
Requirements for Making a New York POA
New York state requires that certain terms be included in the POA document. The state provides statutory forms that are used by many residents and incorporates the mandated terms. Anyone using a different form should consult the statutory form. It identifies the sections that are essential and those that are optional.
It is no longer necessary to employ the exact language used in the statutory form to create a valid POA in New York.
However, the essential terms must still be included. For example, whatever POA form is used must contain language "substantially conforming " to the wording of the statute: "Caution to the Principal" in paragraph (a) of subdivision one of Section 5-1513 of this title; and "Important Information for the Agent" in paragraph (n) of subdivision one of Section 5-1513 of this title.
Power of Attorney Form Signing Requirements
To finalize a POA in New York, the document must be:
- Signed before a notary by the person making the POA.
- Signed before a notary by the person or persons named as the agent(s).
- Signed by two witnesses who are not named as agents in the document.
In New York, the notary public can act as one of the witnesses. Any adult over the age of 18 years old can be a witness, as long as they are not named as the POA agent. It's also a good idea to pick witnesses who are not beneficiaries under the will or in line to be an intestate heir.
New York Health Care Proxy for Medical Decisions
Under the New York Health Care Proxy Law, a state resident can appoint someone to make health care decisions for them if and when they no longer have the ability to make their own decisions.
A health care agent manages the principal's healthcare and makes sure that their health care providers follow the choices they made before they were disabled. In case of a temporary disability, the health care proxy agent steps in for them until they recover.
Special Requirements for Health Care Proxy
All medical providers, including hospitals, are legally required to follow the agent's decisions as if the principal had made them. But the agent's authority can be limited in the document to certain decisions or certain types of decisions. And the principal can also provide written instructions to the agent that they are obliged to follow.
The state provides a fill-in form for this type of proxy. It has a space in which the principal can specify the types of treatments they want to receive and those they do not want. The instructions limit the decision-making power of the agent.
The principal can select any person who could have been a POA agent as their health care proxy agent, and two witnesses must sign the form to make it valid, but there are two exceptions:
- If a doctor is selected, they cannot act as the person's attending doctor.
- If the principal is a patient or a resident of a hospital, nursing home or mental hygiene facility, special restrictions apply to naming someone who works for that facility as the agent.
Durable POA/Health Proxy for Temporary Issues
The durable POA, as described above, remains effective if the principal becomes unable to make their own decisions because of a mental issue or a physical disability. That is, it continues if the principal gets dementia, but also if they are injured in a car accident and fall into a coma.
But this POA's utility is not limited to when the principal nears the end of their life; it is also an important tool when the principal suffers from temporary mental or physical issues.
For example, if the principal is in an accident and injured to the extent that they cannot handle their day-to-day transactions for a short period, the agent can step in. This is also the case if the principal is traveling out of the country and not in communication.
Recent Changes to NY POA Laws
New York enacted its POA laws some years ago and the last amendments were made in 2010. This changed in 2020 when Gov. Andrew Cuomo signed a bill into law amending the POA provisions of the New York State General Obligations Law.
The changes went into effect in June, 2021. It is important for anyone with a POA that predates the new amendments to understand their scope and determine whether they need to revise their document. The biggest changes involved:
- Gift rider: Under prior law, a principal who wished to give the agent authority to transfer assets out of their name was required to sign a "statutory gift rider," a separate rider regarding those powers. The 2021 enactment eliminated the need for the rider. Note that the specific powers being granted relating to gifting must be listed, but they can be incorporated into the POA document itself.
- Witness and notary: Second, under the new law, the principal’s signature must be witnessed by a notary and two witnesses, one witness if the notary is also serving as a witness. The witness requirement in the old law was only for principals conferring gifting authority, but now apply to all POAs.
- Physical disabilities: The new law makes it easier for a person with a physical disability to make a New York POA. Under prior law, those who have mental capacity but cannot sign their own name due to a physical disability had no way to prepare a POA without an attorney or an appointed guardian. Under the new law, a person with mental capacity who does not have physical ability to sign can direct another to sign on their behalf.
- Lowering exact word requirements: The legislature determined that the exact wording requirements were an undue burden to ordinary people who were preparing POAs without an attorney. The new laws remove that requirement and permit substantially compliant language.
- Sanctions: The new law authorizes monetary sanctions against any individual or business like a financial institution that refuses to accept a valid POA.
While any POA that was properly drafted at the time it was created will remain valid, it is a good idea to check the language of a New York POA prepared before 2021 to see how it compares with the newly changed requirements. Cleaning up outdated language can make the POA stronger in the long run.
- Ortiz and Ortiz: New York Power of Attorney
- New York Health Department: New York Health Care Proxy
- Find Law: NY Gen. Oblig. Law Section 5-1501(2)(c)
- Freewill: A Guide to Making a New York State Power of Attorney
- NYSBA: Power of Attorney Update
- Burner Law: New York's New 2021 POA
- Justia: NY Gen Oblig L § 5-1501 (2021)
- Justia: NY Pub Health L § 2981 (2018)
- New York Senate: Statutory Short Form Power of Attorney
- New York Senate: General Obligations (GOB) CHAPTER 24-A, ARTICLE 5, TITLE 15
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.