Bill Text: NY A08120 | 2017-2018 | General Assembly | Amended
Bill Title: Reforms the statutory short form and other powers of attorney for purposes of financial and estate planning.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Engrossed - Dead) 2018-01-09 - enacting clause stricken [A08120 Detail]
Download: New_York-2017-A08120-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8120--B 2017-2018 Regular Sessions IN ASSEMBLY May 31, 2017 ___________ Introduced by M. of A. WEINSTEIN, LUPARDO, ZEBROWSKI -- read once and referred to the Committee on Judiciary -- reported and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- Rules Committee discharged, bill amended, ordered reprinted as amended and recommitted to the Committee on Rules -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general obligations law, in relation to reforming the statutory short form and other powers of attorney for purposes of financial and estate planning; and to repeal certain provisions of such law relating to statutory gift riders The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (j) of subdivision 2 of section 5-1501 of the 2 general obligations law, as amended by chapter 340 of the laws of 2010, 3 is amended to read as follows: 4 (j) "Power of attorney" means a written document, other than a docu- 5 ment referred to in section 5-1501C of this title, by which a principal 6 with capacity designates an agent to act on his or her behalf and 7 includes both a statutory short form power of attorney and a non-statu- 8 tory power of attorney. 9 § 2. Paragraph (n) of subdivision 2 of section 5-1501 of the general 10 obligations law is REPEALED, and paragraphs (o), (p) and (q) are relet- 11 tered paragraphs (n), (o) and (p). 12 § 3. Paragraph (n) of subdivision 2 of section 5-1501 of the general 13 obligations law, as amended by chapter 340 of the laws of 2010 and as 14 relettered by section two of this act, is amended to read as follows: 15 (n) "Statutory short form power of attorney" means a power of attorney 16 that meets the requirements of paragraphs (a), (b) and (c) of subdivi- 17 sion one of section 5-1501B of this title, and that [contains the exact] 18 substantially conforms to the wording of the form set forth in section EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11897-05-7A. 8120--B 2 1 5-1513 of this title; provided however, that any section indicated as 2 "Optional" that is not used may be omitted and replaced by the words 3 "Intentionally Omitted". [A mistake in wording, such as in spelling,4punctuation or formatting, or the use of bold or italic type,] Any 5 insubstantial variations in the form shall not prevent a power of attor- 6 ney from being deemed a statutory short form power of attorney, but the 7 wording of the form set forth in section 5-1513 of this title shall 8 govern. The use of the form set forth in section 5-1513 of this title is 9 lawful and when used, it shall be construed as a statutory short form 10 power of attorney. A statutory short form power of attorney may be used 11 to grant authority provided in sections 5-1502A through 5-1502N of this 12 title. A "statutory short form power of attorney" may contain modifica- 13 tions or additions as provided in section 5-1503 of this title[, but in14no event may it be modified to grant any authority provided in section155-1514 of this title. If the authority (SGR) on the statutory short form16is initialed by the principal, the statutory short form power of attor-17ney must be executed in the manner provided in section 5-1501B of this18title, simultaneously with the statutory gifts rider. A statutory short19form power of attorney and a statutory gifts rider which supplements it20must be read together as a single instrument]. 21 § 4. Subdivisions 1 and 2 of section 5-1501B of the general obli- 22 gations law, as added by chapter 644 of the laws of 2008, the opening 23 paragraph and paragraphs (b) and (c) of subdivision 1, and the opening 24 paragraph and paragraph (a) of subdivision 2 as amended by chapter 340 25 of the laws of 2010, are amended to read as follows: 26 1. To be valid, except as otherwise provided in section 5-1512 of this 27 title, a statutory short form power of attorney, or a non-statutory 28 power of attorney, executed in this state by a principal, must: 29 (a) Be typed or printed using letters which are legible or of clear 30 type no less than twelve point in size, or, if in writing, a reasonable 31 equivalent thereof. 32 (b) Be signed, initialed and dated by a principal with capacity, or in 33 the name of such principal by another person, other than a person desig- 34 nated as the principal's agent or successor agent, in the principal's 35 presence and at the principal's direction, in either case with the 36 signature of the [principal] person signing duly acknowledged in the 37 manner prescribed for the acknowledgment of a conveyance of real proper- 38 ty in the presence of the principal. When a person signs at the direc- 39 tion of a principal he or she shall sign by writing or printing the 40 principal's name, and printing and signing his or her own name. 41 (c) Be signed and dated by any agent acting on behalf of the principal 42 with the signature of the agent duly acknowledged in the manner 43 prescribed for the acknowledgment of a conveyance of real property. A 44 power of attorney executed pursuant to this section is not invalid sole- 45 ly because there has been a lapse of time between the date of acknowl- 46 edgment of the signature of the principal and the date or dates of 47 acknowledgment of the signature or signatures of any agent or agents or 48 successor agent or successor agents authorized to act on behalf of the 49 principal or because the principal became incapacitated during any such 50 lapse of time. 51 (d) [Contain the exact] Substantially conform to the wording of the: 52 (1) "Caution to the Principal" in paragraph (a) of subdivision one of 53 section 5-1513 of this title; and 54 (2) "Important Information for the Agent" in paragraph (n) of subdivi- 55 sion one of section 5-1513 of this title.A. 8120--B 3 1 2. [In addition to the requirements of subdivision one of this2section, to be valid for the purpose of authorizing the agent to make3certain gift transactions described in section 5-1514 of this title:4(a) a statutory short form power of attorney must contain the authori-5ty (SGR) initialed by the principal and be accompanied by a valid statu-6tory gifts rider; and7(b) a non-statutory power of attorney must be executed pursuant to the8requirements of paragraph (b) of subdivision nine of section 5-1514 of9this title.] Insubstantial variation in the wording of the "Caution to 10 the Principal" of paragraph (a) of subdivision one of section 5-1513 of 11 this title or of the "Important Information for the Agent" of paragraph 12 (n) of subdivision one of section 5-1513 of this title shall not prevent 13 a power of attorney from being deemed a statutory short form power of 14 attorney or a non-statutory power of attorney. 15 § 5. Subdivisions 2 and 9 of section 5-1502A of the general obli- 16 gations law, as amended by chapter 340 of the laws of 2010, are amended 17 to read as follows: 18 2. To sell, to exchange, to convey either with or without covenants, 19 to quit-claim, to release, to surrender, to mortgage, to incumber, to 20 partition or to consent to the partitioning, to create, modify or revoke 21 a trust [unless such creation, modification or revocation is a gift22transaction governed by section 5-1514 of this title,] to grant options 23 concerning, to lease or to sublet, or otherwise to dispose of, any 24 estate or interest in land; 25 9. To execute, to acknowledge, to seal and to deliver any deed, 26 creation, modification or revocation of a trust [unless such creation,27modification or revocation is a gift transaction governed by section285-1514 of this title], mortgage, lease, notice, check or other instru- 29 ment which the agent may think useful for the accomplishment of any of 30 the purposes enumerated in this section; 31 § 6. Subdivisions 2 and 7 of section 5-1502B of the general obli- 32 gations law, as amended by chapter 340 of the laws of 2010, are amended 33 to read as follows: 34 2. To sell, to exchange, to convey either with or without covenants, 35 to release, to surrender, to mortgage, to incumber, to pledge, to 36 hypothecate, to pawn, to create, modify or revoke a trust [unless such37creation, modification or revocation is a gift transaction governed by38section 5-1514 of this title] to grant options concerning, to lease or 39 to sublet to others, or otherwise to dispose of any chattel or goods or 40 any interest in any chattel or goods; 41 7. To execute, to acknowledge, to seal and to deliver any conveyance, 42 mortgage, lease, creation, revocation or modification of a trust [unless43such creation, modification or revocation is a gift transaction governed44by section 5-1514 of this title], notice, check or other instrument 45 which the agent may think useful for the accomplishment of any of the 46 purposes enumerated in this section; 47 § 7. Subdivisions 2 and 9 of section 5-1502C of the general obli- 48 gations law, as amended by chapter 340 of the laws of 2010, are amended 49 to read as follows: 50 2. To sell (including short sales), to exchange, to transfer either 51 with or without a guaranty, to release, to surrender, to hypothecate, to 52 pledge, to create, modify or revoke a trust [unless such creation,53modification or revocation is a gift transaction governed by section545-1514 of this title,] to grant options concerning, to loan, to trade 55 in, or otherwise to dispose of any bond, share, instrument of similar 56 character, commodity interest or any instrument with respect thereto;A. 8120--B 4 1 9. To execute, to acknowledge, to seal and to deliver any consent, 2 agreement, authorization, creation, modification or revocation of a 3 trust [unless such creation, declaration, modification or revocation is4a gift transaction governed by section 5-1514 of this title], assign- 5 ment, notice, waiver of notice, check, or other instrument which the 6 agent may think useful for the accomplishment of any of the purposes 7 enumerated in this section; 8 § 8. Subdivision 1 of section 5-1502D of the general obligations law, 9 as amended by chapter 644 of the laws of 2008, paragraphs (a) and (b) as 10 amended by chapter 340 of the laws of 2010, is amended to read as 11 follows: 12 1. To continue, to modify, to terminate and to make deposits to and 13 withdrawals from any deposit account, including any joint account with 14 the agent or totten trust for the benefit of the agent, or other banking 15 arrangement made by or on behalf of the principal prior to the creation 16 of the agency, provided, however, that: 17 (a) with respect to joint accounts existing at the creation of the 18 agency, the authority granted hereby shall not include the power to 19 change the title of the account by the addition of a new joint tenant or 20 the deletion of an existing joint tenant, unless the authority to make 21 such changes is [conveyed in a statutory gifts rider to] stated other- 22 wise in the "Modifications" section of a statutory short form power of 23 attorney or in a non-statutory power of attorney signed and dated by the 24 principal with the signature of the principal duly acknowledged in the 25 manner prescribed for the acknowledgement of a conveyance of real prop- 26 erty, and which is executed pursuant to the requirements of [paragraph27(b) of subdivision nine of] section [5-1514] 5-1501B of this title, and 28 (b) with respect to totten trust accounts existing at the creation of 29 the agency, the authority granted hereby shall not include the power to 30 add, delete, or otherwise change the designation of beneficiaries in 31 effect for any such accounts, unless the authority to make such addi- 32 tions, deletions or changes is [conveyed in a statutory gifts rider to] 33 stated otherwise in the "Modifications" section of a statutory short 34 form power of attorney or in a non-statutory power of attorney signed 35 and dated by the principal with the signature of the principal duly 36 acknowledged in the manner prescribed for the acknowledgment of a 37 conveyance of real property, and which is executed pursuant to the 38 requirements of [paragraph (b) of subdivision nine of] section [5-1514] 39 5-1501B of this title. 40 § 9. Subdivisions 1 and 3 of section 5-1502F of the general obli- 41 gations law, as amended by chapter 340 of the laws of 2010, are amended 42 to read as follows: 43 1. To continue, to pay the premium or assessment on, to modify, to 44 rescind, to release or to terminate any contract of life, accident, 45 health, disability or liability insurance or any combination of such 46 insurance procured by or on behalf of the principal prior to the 47 creation of the agency which insures either the principal or any other 48 person, without regard to whether the principal is or is not a benefici- 49 ary thereunder; provided, however, with respect to life insurance 50 contracts existing at the creation of the agency, the authority granted 51 hereby shall not include the power to add, delete or otherwise change 52 the designation of beneficiaries in effect for any such contract, unless 53 the authority to make such additions, deletions or changes is [conveyed54in a statutory gifts rider to] stated otherwise in the "Modifications" 55 section of a statutory short form power of attorney or in a non-statuto- 56 ry power of attorney signed and dated by the principal with the signa-A. 8120--B 5 1 ture of the principal duly acknowledged in the manner prescribed for the 2 acknowledgment of a conveyance of real property, and which is executed 3 pursuant to the requirements of [paragraph (b) of subdivision nine of] 4 section [5-1514] 5-1501B of this title; 5 3. To apply for and to receive any available loan on the security of 6 the contract of insurance, whether for the payment of a premium or for 7 the procuring of cash, to surrender and thereupon to receive the cash 8 surrender value, to exercise an election as to beneficiary or mode of 9 payment, to change the manner of paying premiums, and to change or to 10 convert the type of insurance contract, with respect to any contract of 11 life, accident, health, disability or liability insurance as to which 12 the principal has, or claims to have, any one or more of the powers 13 described in this section; provided, however, that the authority granted 14 hereby shall not include the power to add, delete or otherwise change 15 the designation of beneficiaries in effect for any such contract, unless 16 the authority to make such additions, deletions or changes is [conveyed17in a statutory gifts rider to] stated otherwise in the "Modifications" 18 section of a statutory short form power of attorney or in a non-statuto- 19 ry power of attorney signed and dated by the principal with the signa- 20 ture of the principal duly acknowledged in the manner prescribed for the 21 acknowledgment of a conveyance of real property, and which is executed 22 pursuant to the requirements of [paragraph (b) of subdivision nine of] 23 section [5-1514] 5-1501B of this title; 24 § 10. Subdivision 14 of section 5-1502I of the general obligations 25 law, as amended by chapter 340 of the laws of 2010, is amended to read 26 as follows: 27 14. To continue gifts that the principal customarily made to individ- 28 uals and charitable organizations prior to the creation of the agency, 29 provided that in any one calendar year all such gifts shall not exceed 30 five [hundred] thousand dollars in the aggregate; and 31 § 11. The section heading, opening paragraph and subdivision 1 of 32 section 5-1502K of the general obligations law, as amended by chapter 33 644 of the laws of 2008, are amended to read as follows: 34 Construction--financial matters related to health care [billing and35payment matters; records, reports and statements]. In a statutory short 36 form power of attorney, the language conferring general authority with 37 respect to "financial matters related to health care [billing and38payment matters; records, reports and statements]," or in a statutory 39 short form power of attorney properly executed in accordance with the 40 laws in effect at the time of its execution, the language conferring 41 authority with respect to "records, reports and statements," must be 42 construed to mean that the principal authorizes the agent: 43 1. [To access records relating to the provision of health care and to44make decisions relating to the past, present or future payment for the45provision of health care consented to by or on behalf of the principal46or the principal's health care agent authorized under state law. In so47doing the agent is acting as the principal's personal representative48pursuant to sections 1171 through 1179 of the Social Security Act, as49added by sections 262 and 264 of Public Law 104-191, and applicable50regulations. This authority shall not include authorization for the51agent to make other medical or health care decisions for the principal] 52 To be responsible for financial matters relating to the principal's 53 health care, including, but not limited to, benefit entitlements and 54 payment obligations, and in so doing, notwithstanding any law to the 55 contrary, to receive from "health care providers" and "health plans," 56 information, including, but not limited to, "protected health informa-A. 8120--B 6 1 tion" as defined in federal and state law, rules and regulations, in 2 order to ascertain the benefits to which the principal is entitled and 3 to determine the legitimacy and accuracy of charges for health care 4 provided to the principal; to obtain for the principal the health care 5 benefits to which the principal is entitled; to meet the principal's 6 financial obligations, and pay bills due and owing, for health care 7 provided to the principal; and to represent the principal, and to act as 8 the principal's personal representative, with respect to financial 9 matters pertaining to the principal's health care. This authority is 10 limited to health care financial matters and shall not include authori- 11 zation for the agent to make health care decisions for the principal; 12 § 12. Subdivisions 2 and 4 of section 5-1502L of the general obli- 13 gations law, as amended by chapter 340 of the laws of 2010, are amended 14 to read as follows: 15 2. To make investment directions, to select and change payment 16 options, and to exercise any other election for the principal with 17 regard to any retirement benefit or plan in which the principal has an 18 interest, provided, however, that the authority granted hereby shall not 19 include the authority to add, delete, or otherwise change the desig- 20 nation of beneficiaries in effect for any such retirement benefit or 21 plan, unless the authority to make such additions, deletions or changes 22 is [conveyed in a statutory gifts rider to] stated otherwise in the 23 "Modifications" section of a statutory short form power of attorney or 24 in a non-statutory power of attorney signed and dated by the principal 25 with the signature of the principal duly acknowledged in the manner 26 prescribed for the acknowledgment of a conveyance of real property, and 27 which is executed pursuant to the requirements of [paragraph (b) of28subdivision nine of] section [5-1514] 5-1501B of this title; 29 4. To prepare, execute and deliver any application, agreement, trust 30 agreement [unless such trust agreement is a gift transaction governed by31section 5-1514 of this title], authorization, check or other instrument 32 or document which may be required under the terms of any retirement 33 benefit or plan in which the principal has an interest or by the admin- 34 istrator thereof, or which the agent deems useful for the accomplishment 35 of any of the purposes enumerated in this section; 36 § 13. Section 5-1503 of the general obligations law, as amended by 37 chapter 340 of the laws of 2010, is amended to read as follows: 38 § 5-1503. Modifications of the statutory short form power of attorney 39 [and of the statutory gifts rider]. A power of attorney which satisfies 40 the requirements of paragraphs (a), (b) and (c) of subdivision one of 41 section 5-1501B and section 5-1513 of this title is not prevented from 42 being a "statutory short form power of attorney", [and a document which43satisfies the requirements of section 5-1514 of this title is not44prevented from being a "statutory gifts rider" as either of these terms45is used in the sections of this title,] by the fact that it also 46 contains additional language at the section labeled "modifications" 47 which: 48 1. Eliminates from the statutory short form power of attorney [or from49the statutory gifts rider] one or more of the powers enumerated in one 50 or more of the constructional sections of this title with respect to a 51 subdivision of the statutory short form power of attorney [or of the52statutory gifts rider], affirmatively chosen by the principal; or 53 2. Supplements one or more of the powers enumerated in one or more of 54 the constructional sections in this title with respect to a subdivision 55 of the statutory short form power of attorney [or of the statutory giftsA. 8120--B 7 1rider], affirmatively chosen by the principal, by specifically listing 2 additional powers of the agent; or 3 3. Makes some additional provision which is not inconsistent with the 4 other provisions of the statutory short form power of attorney [or of5the statutory gifts rider], including a provision revoking one or more 6 powers of attorney previously executed by the principal. 7 § 14. Section 5-1504 of the general obligations law, as amended by 8 chapter 644 of the laws of 2008, the opening paragraph, subparagraphs 1 9 and 9 of paragraph (a) and paragraph (b) of subdivision 1, subdivisions 10 2, 3 and 5 as amended and subdivision 7 as added by chapter 340 of the 11 laws of 2010, is amended to read as follows: 12 § 5-1504. Acceptance of and reliance upon acknowledged statutory short 13 form power of attorney. 1. (a) For purposes of this section, "acknowl- 14 edged" means purportedly verified before a notary public or other indi- 15 vidual authorized to take acknowledgements. 16 (b) A person that in good faith accepts an acknowledged power of 17 attorney without actual knowledge that the signature is not genuine may 18 rely upon the presumption that the signature is genuine. 19 (c) A person that in good faith accepts an acknowledged power of 20 attorney without actual knowledge that the power of attorney is void, 21 invalid, or terminated, that the purported agent's authority is void, 22 invalid, or terminated, or that the agent is exceeding or improperly 23 exercising the agent's authority may rely upon the power of attorney as 24 if the power of attorney were genuine, valid and still in effect, the 25 agent's authority were genuine, valid and still in effect, and the agent 26 had not exceeded and had properly exercised the authority. 27 (d) A person that is asked to accept an acknowledged power of attorney 28 may request, and rely upon, without further investigation: 29 (1) an agent's certification under penalty of perjury of any factual 30 matter concerning the principal, agent or power of attorney; and 31 (2) an opinion of counsel as to any matter of law concerning the power 32 of attorney if the person making the request provides in a writing or 33 other record the reason for the request. 34 (e) An opinion of counsel requested under this section must be 35 provided at the principal's expense unless the request is made more than 36 seven business days after the power of attorney is presented for accept- 37 ance. 38 (f) For purposes of this section, a person that conducts activities 39 through employees is without actual knowledge of a fact relating to a 40 power of attorney, a principal, or an agent if the employee conducting 41 the transaction involving the power of attorney is without actual know- 42 ledge of the fact after making reasonable inquiry with respect thereto. 43 2. No third party located or doing business in this state shall 44 refuse, without reasonable cause, to honor a statutory short form power 45 of attorney properly executed in accordance with section 5-1501B of this 46 title, [including a statutory short form power of attorney which is47supplemented by a statutory gifts rider,] or a statutory short form 48 power of attorney properly executed in accordance with the laws in 49 effect at the time of its execution. 50 (a) Reasonable cause under this subdivision shall include, but not be 51 limited to: 52 (1) the refusal by the agent to provide an original power of attorney 53 or a copy certified by an attorney pursuant to section twenty-one 54 hundred five of the civil practice law and rules, or by a court or other 55 government entity;A. 8120--B 8 1 (2) the third party's good faith referral of the principal and the 2 agent to the local adult protective services unit; 3 (3) actual knowledge of a report having been made by any person to the 4 local adult protective services unit alleging physical or financial 5 abuse, neglect, exploitation or abandonment of the principal by the 6 agent or a person acting for or with the agent; 7 (4) actual knowledge of the principal's death or a reasonable basis 8 for believing the principal has died; 9 (5) actual knowledge of the incapacity of the principal or a reason- 10 able basis for believing that the principal is incapacitated where the 11 power of attorney tendered is a nondurable power of attorney; 12 (6) actual knowledge or a reasonable basis for believing that the 13 principal was incapacitated at the time the power of attorney was 14 executed; 15 (7) actual knowledge or a reasonable basis for believing that the 16 power of attorney was procured through fraud, duress or undue influence; 17 (8) actual notice, pursuant to subdivision [three] five of this 18 section, of the termination or revocation of the power of attorney; [or] 19 (9) the refusal by a title insurance company to underwrite title 20 insurance for a gift of real property made pursuant to a statutory 21 [gifts rider] short form power of attorney or non-statutory power of 22 attorney that does not contain express instructions or purposes of the 23 principal with respect to gifts in the modifications section of the 24 statutory short form power of attorney or in the non-statutory power of 25 attorney; or 26 (10) the refusal of a request for a certification or an opinion of 27 counsel under paragraph (d) of subdivision one of this section. 28 (b) It shall be deemed unreasonable for a third party to refuse to 29 honor a statutory short form power of attorney[, including a statutory30short form power of attorney which is supplemented by a statutory gifts31rider,] properly executed in accordance with section 5-1501B of this 32 title or a statutory short form power of attorney properly executed in 33 accordance with the laws in effect at the time of its execution, if the 34 only reason for the refusal is any of the following: 35 (1) the power of attorney is not on a form prescribed by the third 36 party to whom the power of attorney is presented. 37 (2) there has been a lapse of time since the execution of the power of 38 attorney. 39 (3) on the face of the statutory short form power of attorney, there 40 is a lapse of time between the date of acknowledgment of the signature 41 of the principal and the date of acknowledgment of the signature of any 42 agent. 43 [2.] 3. Not later than the seventh business day after presentation of 44 a statutory short form power of attorney properly executed in accordance 45 with section 5-1501B of this title or in accordance with the laws in 46 effect at the time of its execution to a third party for acceptance, 47 such third party shall either (a) honor the statutory short form power 48 of attorney, or (b) reject the statutory short form power of attorney in 49 a writing that sets forth the reasons for such rejection, which writing 50 shall be sent to the principal and the agent at the addresses on the 51 power of attorney and such other addresses as provided by the principal 52 or the agent, or (c) request the agent to execute an acknowledged affi- 53 davit pursuant to subdivision seven of this section stating that the 54 power of attorney is in full force and effect if the statutory short 55 form power of attorney was not submitted for acceptance together with 56 such an acknowledged affidavit. If the third party initially rejects theA. 8120--B 9 1 statutory short form power of attorney in a writing that sets forth the 2 reasons for such rejection, the third party shall within five business 3 days after receipt of a writing in response to the reasons for such 4 rejection (i) honor the statutory short form power of attorney, or (ii) 5 finally reject the statutory short form power of attorney in a writing 6 that sets forth the reasons for such rejection. If the third party 7 requests the agent to execute such an acknowledged affidavit, the third 8 party shall honor such statutory short form power of attorney within 9 five business days after receipt by the third party of an acknowledged 10 affidavit which complies with the provisions of subdivision seven of 11 this section, stating that the power of attorney is in full force and 12 effect unless reasonable cause exists as described in paragraph (a) of 13 subdivision two of this section. For the purposes of this subdivision, 14 the time requirements in which to honor or reject the statutory short 15 form power of attorney or request the agent to execute an acknowledged 16 affidavit shall not apply to the department of audit and control or a 17 public retirement system of the state as defined in subdivision six of 18 section one hundred fifty-two of the retirement and social security law. 19 4. Except as provided in subdivision [three] five of this section, it 20 shall be deemed unlawful for a third party to unreasonably refuse to 21 honor a properly executed statutory short form power of attorney[,22including a statutory short form power of attorney which is supplemented23by a statutory gifts rider,] executed in accordance with section 5-1501B 24 of this title or a statutory short form power of attorney properly 25 executed in accordance with the laws in effect at the time of its 26 execution. [A] If a special proceeding as authorized by section 5-1510 27 of this title is brought to compel the third party to honor the statuto- 28 ry short form power of attorney, the court may award damages, including 29 reasonable attorney's fees and costs, if the court finds that the third 30 party acted unreasonably in refusing to honor the agent's authority 31 under the statutory short form power of attorney. Such special proceed- 32 ing shall be the exclusive remedy for a violation of this section. 33 [3.] 5. In the absence of actual knowledge that the principal lacked 34 capacity to execute a statutory short form power of attorney or that the 35 statutory short form power of attorney was procured through fraud, 36 duress or undue influence, no third party receiving and retaining a 37 [properly executed] statutory short form power of attorney properly 38 executed in accordance with section 5-1501B of this title, [including a39statutory short form power of attorney which is supplemented by a statu-40tory gifts rider] or a statutory short form power of attorney properly 41 executed in accordance with the laws in effect at the time of its 42 execution, or a complete photostatic copy of the properly executed 43 original thereof, nor any officer, agent, attorney-in-fact or employee 44 of such third party shall incur any liability by reason of acting upon 45 the authority thereof unless the third party shall have received actual 46 notice of the revocation or termination of such power of attorney. 47 If a principal maintains an account at a financial institution, the 48 financial institution is deemed to have actual notice after it has had a 49 reasonable opportunity to act on a written notice of the revocation or 50 termination following its receipt of the same at its office where such 51 account is located. 52 [4.] 6. If the application of the provisions of subdivision [one or] 53 two or four of this section shall be held invalid to any third party the 54 application of such provisions to any third party other than those to 55 which it is held invalid, shall not be affected thereby.A. 8120--B 10 1 [5.] 7. When the power of attorney is presented to a third party, it 2 shall not be deemed unreasonable for a third party to require the agent 3 to execute an acknowledged affidavit pursuant to this subdivision stat- 4 ing that the power of attorney is in full force and effect. Such an 5 affidavit is conclusive proof to the third party relying on the power of 6 attorney that the power of attorney is valid and effective, and has not 7 been terminated, revoked or modified, except as to any third party who 8 had actual notice that the power of attorney had terminated, been 9 revoked or been modified prior to the execution of the affidavit. Such 10 affidavit shall state that: 11 (a) the agent does not have, at the time of the transaction, actual 12 notice of the termination or revocation of the power of attorney, or 13 notice of any facts indicating that the power of attorney has been 14 terminated or revoked; 15 (b) the agent does not have, at the time of the transaction, actual 16 notice that the power of attorney has been modified in any way that 17 would affect the ability of the agent to authorize or engage in the 18 transaction, or notice of any facts indicating that the power of attor- 19 ney has been so modified; 20 (c) if the agent was named as a successor agent, the prior agent is no 21 longer able or willing to serve; and 22 (d) if the agent has been the principal's spouse, the power of attor- 23 ney expressly provides that divorce or annulment as defined in subpara- 24 graph two of paragraph (f) of section 5-1.4 of the estates, powers and 25 trusts law does not terminate the agent's authority thereunder, or the 26 agent does not have actual notice that the marriage has been terminated 27 by divorce or annulment as defined in subparagraph two of paragraph (f) 28 of section 5-1.4 of the estates, powers and trusts law at the time of 29 the transaction. 30 [6.] 8. Nothing in this section shall require the acceptance of a form 31 that is not a statutory short form power of attorney. 32 [7.] 9. A statutory short form power of attorney or a non-statutory 33 power of attorney that meets the requirements of subdivision one of 34 section 5-1501B of this title shall be accepted for recording so long as 35 it has been signed by one agent named therein whose signature has been 36 acknowledged. If two or more agents acting on behalf of the principal 37 are required to act together, the power of attorney shall be accepted 38 for recording as long as their signatures have been acknowledged. When a 39 successor or co-agent authorized to act separately from any other agents 40 presents a certified copy of a recorded statutory short form power of 41 attorney or non-statutory power of attorney with the agent's signature 42 acknowledged, the instrument shall be accepted for recording. 43 § 15. Subparagraph 2 of paragraph (a) of subdivision 2 of section 44 5-1505 of the general obligations law, as amended by chapter 340 of the 45 laws of 2010, is amended to read as follows: 46 (2) To keep the principal's property separate and distinct from any 47 other property owned or controlled by the agent, except for property 48 that is jointly owned by the principal and agent at the time of the 49 execution of the power of attorney, and property that becomes jointly 50 owned after the execution of the power of attorney as the result of the 51 agent's acquisition of an interest in the principal's property by reason 52 of the agent's exercise of authority granted in the modifications 53 section of a statutory [gifts rider] short form power of attorney or in 54 a non-statutory power of attorney [signed and dated by the principal55with the signature of the principal duly acknowledged in the manner56prescribed for the acknowledgment of a conveyance of real property, andA. 8120--B 11 1which is executed pursuant to the requirements of paragraph (b) of2subdivision nine of section 5-1514 of this title]. The agent may not 3 make gifts [to] of the principal's property to himself or herself with- 4 out specific authorization in a power of attorney. 5 § 16. Paragraphs (h) and (i) of subdivision 2 of section 5-1510 of the 6 general obligations law, as added by chapter 644 of the laws of 2008, 7 are amended to read as follows: 8 (h) to construe any provision of a power of attorney; or 9 (i) to compel acceptance of the power of attorney [in which event the10relief to be granted is limited to an order compelling acceptance]. 11 § 17. Section 5-1513 of the general obligations law, as amended by 12 chapter 340 of the laws of 2010, is amended to read as follows: 13 § 5-1513. Statutory short form power of attorney. [1.] The use of the 14 following form, or one which substantially conforms to the following 15 form, in the creation of a power of attorney is lawful, and, when used, 16 and executed in accordance with subdivision one of section 5-1501B of 17 this title, it shall be construed as a statutory short form power of 18 attorney in accordance with the provisions of this title; provided 19 however, that any section indicated as "Optional" which is not used may 20 be omitted and replaced by the words "Intentionally Omitted": 21 "POWER OF ATTORNEY 22 NEW YORK STATUTORY SHORT FORM 23 (a) CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important 24 document. As the "principal," you give the person whom you choose (your 25 "agent") authority to spend your money and sell or dispose of your prop- 26 erty during your lifetime without telling you. You do not lose your 27 authority to act even though you have given your agent similar authori- 28 ty. 29 When your agent exercises this authority, he or she must act according 30 to any instructions you have provided or, where there are no specific 31 instructions, in your best interest. "Important Information for the 32 Agent" at the end of this document describes your agent's responsibil- 33 ities. 34 Your agent can act on your behalf only after signing the Power of 35 Attorney before a notary public. 36 You can request information from your agent at any time. If you are 37 revoking a prior Power of Attorney, you should provide written notice of 38 the revocation to your prior agent(s) and to any third parties who may 39 have acted upon it, including the financial institutions where your 40 accounts are located. 41 You can revoke or terminate your Power of Attorney at any time for any 42 reason as long as you are of sound mind. If you are no longer of sound 43 mind, a court can remove an agent for acting improperly. 44 Your agent cannot make health care decisions for you. You may execute 45 a "Health Care Proxy" to do this. 46 The law governing Powers of Attorney is contained in the New York 47 General Obligations Law, Article 5, Title 15. This law is available at a 48 law library, or online through the New York State Senate or Assembly 49 websites, [www.senate.state.ny.us] www.nysenate.gov or 50 [www.assembly.state.ny.us] www.nyassembly.gov.A. 8120--B 12 1 If there is anything about this document that you do not understand, 2 you should ask a lawyer of your own choosing to explain it to you. 3 (b) DESIGNATION OF AGENT(S): 4 I, _______________________________________________, hereby appoint: 5 name and address of principal 6 _____________________________________________________as my agent(s) 7 name(s) and address(es) of agent(s) 8 If you designate more than one agent above and you do not initial a 9 statement below, they must act together [unless you initial the state-10ment below]. 11 ( ) My agents must act TOGETHER. 12 ( ) My successor agents may act SEPARATELY. 13 (c) DESIGNATION OF SUCCESSOR AGENT(S): (OPTIONAL) 14 If any agent designated above is unable or unwilling to serve, I 15 appoint as my successor agent(s): 16 _______________________________________________________________ 17 name(s) and address(es) of successor agent(s) 18 [Successor] If you do not initial a statement below, successor agents 19 designated above must act together [unless you initial the statement20below]. 21 ( ) My successor agents must act TOGETHER. 22 ( ) My successor agents may act SEPARATELY. 23 You may provide for specific succession rules in this section. Insert 24 specific succession provisions here: 25 (d) This POWER OF ATTORNEY shall not be affected by my subsequent inca- 26 pacity unless I have stated otherwise below, under "Modifications". 27 (e) This POWER OF ATTORNEY DOES NOT REVOKE any Powers of Attorney previ- 28 ously executed by me unless I have stated otherwise below, under 29 "Modifications." 30 [If you do NOT intend to revoke your prior Powers of Attorney, and if31you have granted the same authority in this Power of Attorney as you32granted to another agent in a prior Power of Attorney, each agent can33act separately unless you indicate under "Modifications" that the agents34with the same authority are to act together.] 35 (f) GRANT OF AUTHORITY: 36 To grant your agent some or all of the authority below, either 37 (1) Initial the bracket at each authority you grant, or 38 (2) Write or type the letters for each authority you grant on the 39 blank line at (P), and initial the bracket at (P). If you initial 40 (P), you do not need to initial the other lines. 41 I grant authority to my agent(s) with respect to the following 42 subjects as defined in sections 5-1502A through 5-1502N of the New York 43 General Obligations Law: 44 ( ) (A) real estate transactions; 45 ( ) (B) chattel and goods transactions; 46 ( ) (C) bond, share, and commodity transactions; 47 ( ) (D) banking transactions; 48 ( ) (E) business operating transactions; 49 ( ) (F) insurance transactions; 50 ( ) (G) estate transactions; 51 ( ) (H) claims and litigation;A. 8120--B 13 1 ( ) (I) personal and family maintenance. If you grant your agent 2 this authority, it will allow the agent to make gifts 3 that you customarily have made to individuals, including 4 the agent, and charitable organizations. The total 5 amount of all such gifts in any one calendar year cannot 6 exceed five [hundred] thousand dollars; 7 ( ) (J) benefits from governmental programs or civil or military 8 service; 9 ( ) (K) financial matters related to health care [billing and10payment matters]; records, reports, and statements; 11 ( ) (L) retirement benefit transactions; 12 ( ) (M) tax matters; 13 ( ) (N) all other matters; 14 ( ) (O) full and unqualified authority to my agent(s) to dele- 15 gate any or all of the foregoing powers to any person or 16 persons whom my agent(s) select; 17 ( ) (P) EACH of the matters identified by the following 18 letters______. 19 You need not initial the other lines if you initial line (P). 20 (g) [MODIFICATIONS: (OPTIONAL)21In this section, you may make additional provisions, including22language to limit or supplement authority granted to your agent.23However, you cannot use this Modifications section to grant your agent24authority to make gifts or changes to interests in your property. If25you wish to grant your agent such authority, you MUST complete the Stat-26utory Gifts Rider.27(h)] CERTAIN GIFT TRANSACTIONS: [STATUTORY GIFTS RIDER] (OPTIONAL) 28 In order to authorize your agent to make gifts in excess of an annual 29 total of [$500] $5,000 for all gifts described in (I) of the grant of 30 authority section of this document (under personal and family mainte- 31 nance), and/or to make changes to interest in your property, you must 32 [initial the statement below and execute a Statutory Gifts Rider at the33same time as this instrument. Initialing the statement below by itself34does not authorize your agent to make gifts. The preparation of the35Statutory Gifts Rider] expressly grant that authorization in the Modifi- 36 cations section below. If you wish to authorize your agent to make gifts 37 to himself or herself, you must expressly grant such authorization in 38 the Modifications section below. Granting such authority to your agent 39 gives your agent the authority to take actions which could significantly 40 reduce your property and/or change how your property is distributed at 41 your death. Your choice to grant such authority should be [supervised42by] discussed with a lawyer. 43 ( ) [(SGR)] I grant my agent authority to make gifts in accord- 44 ance with the terms and conditions of the [Statutory Gifts Rider] 45 Modifications that [supplements] supplement this Statutory Power of 46 Attorney. 47 (h) MODIFICATIONS: (OPTIONAL) 48 In this section, you may make additional provisions, including, but 49 not limited to, language to limit or supplement authority granted to 50 your agent, language to grant your agent the specific authority to make 51 gifts to himself or herself, and/or language to grant your agent the 52 specific authority to make other gift transactions and/or changes to 53 interests in your property. Your agent is entitled to be reimbursed from 54 your assets for reasonable expenses incurred on your behalf. In this 55 section, you may make additional provisions if you ALSO wish yourA. 8120--B 14 1 agent(s) to be compensated from your assets for services rendered on 2 your behalf, and you may define "reasonable compensation." 3 (i) DESIGNATION OF MONITOR(S): (OPTIONAL) 4 If you wish to appoint monitor(s), initial and fill in the section 5 below: 6 ( ) I wish to designate ______________________, whose address(es) 7 is (are) ____________________________________________________________, 8 as monitor(s). Upon the request of the monitor(s), my agent(s) must 9 provide the monitor(s) with a copy of the power of attorney and a record 10 of all transactions done or made on my behalf. Third parties holding 11 records of such transactions shall provide the records to the monitor(s) 12 upon request. 13 (j) COMPENSATION OF AGENT(S): [(OPTIONAL)] 14 Your agent is entitled to be reimbursed from your assets for reason- 15 able expenses incurred on your behalf. If you ALSO wish your agent(s) to 16 be compensated from your assets for services rendered on your behalf, 17 [initial the statement below. If you] and/or you wish to define "reason- 18 able compensation", you may do so above, under "Modifications"[.19( ) My agent(s) shall be entitled to reasonable compensation for20services rendered.] 21 (k) ACCEPTANCE BY THIRD PARTIES: I agree to indemnify the third party 22 for any claims that may arise against the third party because of reli- 23 ance on this Power of Attorney. I understand that any termination of 24 this Power of Attorney, whether the result of my revocation of the Power 25 of Attorney or otherwise, is not effective as to a third party until the 26 third party has actual notice or knowledge of the termination. 27 (l) TERMINATION: This Power of Attorney continues until I revoke it or 28 it is terminated by my death or other event described in section 5-1511 29 of the General Obligations Law. 30 Section 5-1511 of the General Obligations Law describes the manner in 31 which you may revoke your Power of Attorney, and the events which termi- 32 nate the Power of Attorney. 33 (m) SIGNATURE AND ACKNOWLEDGMENT: 34 In Witness Whereof I have hereunto signed my name on ___________,20___. 35 PRINCIPAL signs here: ==>__________________________________________ 36 (acknowledgment) 37 (n) IMPORTANT INFORMATION FOR THE AGENT: 38 When you accept the authority granted under this Power of Attorney, a 39 special legal relationship is created between you and the principal. 40 This relationship imposes on you legal responsibilities that continue 41 until you resign or the Power of Attorney is terminated or revoked. You 42 must: 43 (1) act according to any instructions from the principal, or, where 44 there are no instructions, in the principal's best interest; 45 (2) avoid conflicts that would impair your ability to act in the prin- 46 cipal's best interest;A. 8120--B 15 1 (3) keep the principal's property separate and distinct from any 2 assets you own or control, unless otherwise permitted by law; 3 (4) keep a record [or] of all [receipts, payments, and] transactions 4 conducted for the principal or keep all receipts of payments and trans- 5 actions conducted for the principal; and 6 (5) disclose your identity as an agent whenever you act for the prin- 7 cipal by writing or printing the principal's name and signing your own 8 name as "agent" in either of the following manners: (Principal's Name) 9 by (Your Signature) as Agent, or (your signature) as Agent for (Princi- 10 pal's Name). 11 You may not use the principal's assets to benefit yourself or anyone 12 else or make gifts to yourself or anyone else unless the principal has 13 specifically granted you that authority in the modifications section of 14 this document[, which is either a Statutory Gifts Rider attached to a15Statutory Short Form Power of Attorney] or a Non-Statutory Power of 16 Attorney. If you have that authority, you must act according to any 17 instructions of the principal or, where there are no such instructions, 18 in the principal's best interest. You may resign by giving written 19 notice to the principal and to any co-agent, successor agent, monitor if 20 one has been named in this document, or the principal's guardian if one 21 has been appointed. If there is anything about this document or your 22 responsibilities that you do not understand, you should seek legal 23 advice. 24 Liability of agent: 25 The meaning of the authority given to you is defined in New York's 26 General Obligations Law, Article 5, Title 15. If it is found that you 27 have violated the law or acted outside the authority granted to you in 28 the Power of Attorney, you may be liable under the law for your 29 violation. 30 (o) AGENT'S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT: 31 It is not required that the principal and the agent(s) sign at the 32 same time, nor that multiple agents sign at the same time. 33 I/we, ___________________________________________, have read the forego- 34 ing Power of Attorney. I am/we are the person(s) identified therein as 35 agent(s) for the principal named therein. 36 I/we acknowledge my/our legal responsibilities. 37 In Witness Whereof I have hereunto signed my name on ________________ 38 20_____. 39 Agent(s) sign(s) here:==>__________________________________________ 40 (acknowledgment(s)) 41 (p) SUCCESSOR AGENT'S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT: 42 It is not required that the principal and the SUCCESSOR agent(s), if 43 any, sign at the same time, nor that multiple SUCCESSOR agents sign at 44 the same time. Furthermore, successor agents can not use this power of 45 attorney unless the agent(s) designated above is/are unable or unwilling 46 to serve. 47 I/we, ___________________________________________, have read the forego- 48 ing Power of Attorney. I am/we are the person(s) identified therein as 49 SUCCESSOR agent(s) for the principal named therein.A. 8120--B 16 1 In Witness Whereof I have hereunto signed my name on ________________ 2 20_____. 3 Successor Agent(s) sign(s) here:==>______________________________________ 4 (acknowledgment(s))" 5 § 18. Section 5-1514 of the general obligations law is REPEALED. 6 § 19. This act shall take effect on the one hundred eightieth day 7 after it shall have become a law, provided, that any statutory short 8 form power of attorney and any statutory gifts rider executed by a prin- 9 cipal and valid at the time executed by such principal shall remain 10 valid, as will any revocation of a prior power of attorney that was 11 delivered to an agent prior to the effective date of this act.
