STATE OF NEW YORK
________________________________________________________________________
8392--C
Cal. No. 582
2009-2010 Regular Sessions
IN ASSEMBLY
May 19, 2009
___________
Introduced by M. of A. WEINSTEIN -- read once and referred to the
Committee on Judiciary -- reported from committee, advanced to a third
reading, amended and ordered reprinted, retaining its place on the
order of third reading -- reported from committee, advanced to a third
reading, amended and ordered reprinted, retaining its place on the
order of third reading -- passed by Assembly and delivered to the
Senate, recalled from the Senate, vote reconsidered, bill amended,
ordered reprinted, retaining its place on the order of third reading
AN ACT to amend the general obligations law, in relation to powers of
attorney for financial and estate planning; and directing the law
revision commission to study the implementation of such powers of
attorney
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The title heading of title 15 of article 5 of the general
2 obligations law, as amended by chapter 644 of the laws of 2008, is
3 amended to read as follows:
4 STATUTORY SHORT FORM AND OTHER POWERS OF ATTORNEY
5 FOR FINANCIAL AND ESTATE PLANNING
6 § 2. Section 5-1501 of the general obligations law, as added by chap-
7 ter 644 of the laws of 2008, is amended to read as follows:
8 § 5-1501. [Definitions] Application and definitions. 1. This title
9 shall apply to all powers of attorney except powers of attorney excluded
10 from this title by section 5-1501C of this title.
11 2. As used in this title the following terms shall have the following
12 meanings:
13 [1.] (a) "Agent" means a person granted authority to act as attorney-
14 in-fact for the principal under a power of attorney, and includes the
15 original agent and any co-agent or successor agent. Unless the context
16 indicates otherwise, an "agent" designated in a power of attorney shall
17 mean "attorney-in-fact" for the purposes of this title. An agent acting
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11829-16-0
A. 8392--C 2
1 under a power of attorney has a fiduciary relationship with the princi-
2 pal.
3 [2.] (b) "Benefits from governmental programs or civil or military
4 service" means any benefit, program or assistance provided under a stat-
5 ute or governmental regulation, including social security, medicare and
6 medicaid.
7 [3.] (c) "Capacity" means ability to comprehend the nature and conse-
8 quences of the act of executing and granting, revoking, amending or
9 modifying a power of attorney, any provision in a power of attorney, or
10 the authority of any person to act as agent under a power of attorney.
11 [4.] (d) "Compensation" means reasonable compensation authorized to be
12 paid to the agent from assets of the principal for services actually
13 rendered by the agent pursuant to the authority granted in a power of
14 attorney.
15 [5.] (e) "Financial institution" means a financial entity, including,
16 but not limited to: a bank, trust company, national bank, savings bank,
17 federal mutual savings bank, savings and loan association, federal
18 savings and loan association, federal mutual savings and loan associ-
19 ation, credit union, federal credit union, branch of a foreign banking
20 corporation, public pension fund, retirement system, securities broker,
21 securities dealer, securities firm, and insurance company.
22 [6.] (f) "Incapacitated" means to be without capacity.
23 [7.] (g) "Internal Revenue Code" means the United States Internal
24 Revenue Code of 1986, as amended. Such references, however, shall be
25 deemed to constitute references to any corresponding provisions of any
26 subsequent federal tax code.
27 [8.] (h) "Monitor" means a person appointed in the power of attorney
28 who has the authority to request, receive, and seek to compel the agent
29 to provide a record of all receipts, disbursements, and transactions
30 entered into by the agent on behalf of the principal.
31 [9.] (i) "Person" means an individual, whether acting for himself or
32 herself, or as a fiduciary or as an official of any legal, governmental
33 or commercial entity (including, but not limited to, any such entity
34 identified in this subdivision), corporation, business trust, estate,
35 trust, partnership, limited liability company, association, joint
36 venture, government, governmental subdivision, government agency,
37 government entity, government instrumentality, public corporation, or
38 any other legal or commercial entity.
39 [10.] (j) "Power of attorney" means a written document, other than a
40 document referred to in section 5-1501C of this title, by which a prin-
41 cipal with capacity designates an agent to act on his or her behalf.
42 [11.] (k) "Principal" means an individual who is eighteen years of age
43 or older, acting for himself or herself and not as a fiduciary or as an
44 official of any legal, governmental or commercial entity, who executes a
45 power of attorney.
46 [12.] (l) "Record" means information that is inscribed on a tangible
47 medium or that is stored in an electronic or other medium and is
48 retrievable in perceivable form.
49 [13.] (m) "Sign" means to place any memorandum, mark or sign, written,
50 printed, stamped, photographed, engraved or otherwise upon an instrument
51 or writing, or to use an electronic signature as that term is defined in
52 subdivision three of section three hundred two of the state technology
53 law, with the intent to execute the instrument, writing or electronic
54 record. In accordance with the requirements of section three hundred
55 seven of the state technology law, a power of attorney or any other
56 instrument executed by the principal or agent that is recordable under
A. 8392--C 3
1 the real property law shall not be executed with an electronic signa-
2 ture.
3 [14.] (n) "Statutory [major] gifts rider" or ["SMGR"] "SGR" means a
4 document by which the principal may supplement a statutory short form
5 power of attorney to authorize [major] certain gift transactions [and
6 other transfers], [that meets] other than those permitted by subdivision
7 fourteen of section 5-1502I of this title. The document must meet the
8 requirements of subdivision nine of section 5-1514 of this title, and
9 [that contains] contain the exact wording of the form set forth in
10 subdivision ten of section 5-1514 of this title. A mistake in wording,
11 such as in spelling, punctuation or formatting, or the use of bold or
12 italic type, shall not prevent a statutory gifts rider from being deemed
13 a statutory gifts rider, but the wording of the form set forth in subdi-
14 vision ten of section 5-1514 of this title shall govern. The use of the
15 form set forth in subdivision ten of section 5-1514 of this title is
16 lawful and when used, it shall be construed as a statutory [major] gifts
17 rider. A statutory [major] gifts rider may contain modifications or
18 additions as provided in section 5-1503 of this title as such modifica-
19 tions or additions relate to [major] all gift transactions [and other
20 transfers]. The statutory [major] gifts rider must be executed in the
21 manner provided in section 5-1514 of this title, simultaneously with the
22 statutory short form power of attorney in which the authority [(SMGR)]
23 (SGR) is initialed by the principal. A statutory [major] gifts rider and
24 the statutory short form power of attorney it supplements must be read
25 together as a single instrument.
26 [15.] (o) "Statutory short form power of attorney" means a power of
27 attorney that meets the requirements of paragraphs (a), (b) and (c) of
28 subdivision one of section 5-1501B of this title, and that contains the
29 exact wording of the form set forth in section 5-1513 of this title. A
30 mistake in wording, such as in spelling, punctuation or formatting, or
31 the use of bold or italic type, shall not prevent a power of attorney
32 from being deemed a statutory short form power of attorney, but the
33 wording of the form set forth in section 5-1513 of this title shall
34 govern. The use of the form set forth in section 5-1513 of this title is
35 lawful and when used, it shall be construed as a statutory short form
36 power of attorney. A statutory short form power of attorney may be used
37 to grant authority provided in sections 5-1502A through 5-1502N of this
38 title. A "statutory short form power of attorney" may contain modifica-
39 tions or additions as provided in section 5-1503 of this title, but in
40 no event may it be modified to grant any authority provided in section
41 5-1514 of this title. If the authority [(SMGR)] (SGR) on the statutory
42 short form is initialed by the principal, the statutory short form power
43 of attorney must be executed in the manner provided in section 5-1501B
44 of this title, simultaneously with the statutory [major] gifts rider. A
45 statutory short form power of attorney and a statutory [major] gifts
46 rider which supplements it must be read together as a single instrument.
47 [16.] (p) "Non-statutory power of attorney" means a power of attorney
48 that is not a statutory short form power of attorney.
49 (q) "Third party" means a financial institution or person other than a
50 principal or an agent.
51 § 3. The opening paragraph and paragraphs (b) and (c) of subdivision 1
52 of section 5-1501B of the general obligations law, as added by chapter
53 644 of the laws of 2008, are amended to read as follows:
54 To be valid, except as otherwise provided in section 5-1512 of this
55 title, a statutory short form power of attorney, or a non-statutory
A. 8392--C 4
1 power of attorney, executed in this state by [an individual] a
2 principal, must:
3 (b) Be signed and dated by a principal with capacity, with the signa-
4 ture of the principal duly acknowledged in the manner prescribed for the
5 [acknowledgement] acknowledgment of a conveyance of real property.
6 (c) Be signed and dated by any agent acting on behalf of the principal
7 with the signature of the agent duly acknowledged in the manner
8 prescribed for the [acknowledgement] acknowledgment of a conveyance of
9 real property. A power of attorney executed pursuant to this section is
10 not invalid solely because there has been a lapse of time between the
11 date of acknowledgment of the signature of the principal and the date or
12 dates of [acknowledgement] acknowledgment of the signature or signatures
13 of [the] any agent [acting] or agents or successor agent or successor
14 agents authorized to act on behalf of the principal or because the prin-
15 cipal became incapacitated during any such lapse of time.
16 § 4. The opening paragraph and paragraph (a) of subdivision 2 of
17 section 5-1501B of the general obligations law, as added by chapter 644
18 of the laws of 2008, is amended to read as follows:
19 In addition to the requirements of subdivision one of this section, to
20 be valid for the purpose of authorizing the agent to make [any gift or
21 other transfer] certain gift transactions described in section 5-1514 of
22 this title:
23 (a) a statutory short form power of attorney must contain the authori-
24 ty [(SMGR)] (SGR) initialed by the principal and be accompanied by a
25 valid statutory [major] gifts rider; and
26 § 5. Subdivisions 3 and 4 of section 5-1501B of the general obli-
27 gations law, as added by chapter 644 of the laws of 2008, are amended to
28 read as follows:
29 3. (a) The date on which an agent's signature is acknowledged is the
30 effective date of the power of attorney as to that agent; provided,
31 however, that if two or more agents are designated to act together, the
32 power of attorney takes effect when all the agents so designated have
33 signed [the] such power of attorney with their signatures acknowledged.
34 (b) If the power of attorney states that it takes effect upon the
35 occurrence of a date or a contingency specified in the document, then
36 the power of attorney takes effect only when the date or contingency
37 identified in the document has occurred, and the signature of the agent
38 acting on behalf of the principal has been acknowledged. If the document
39 requires that a person or persons named or otherwise identified therein
40 declare, in writing, that the identified contingency has occurred, such
41 a declaration satisfies the requirement of this paragraph without regard
42 to whether the specified contingency has occurred.
43 4. Nothing of this title shall be construed to bar the use or validity
44 of any other or different form of power of attorney desired by a person
45 other than [an individual] a principal as the term [person] principal is
46 defined in section 5-1501 of this title.
47 § 6. The general obligations law is amended by adding a new section
48 5-1501C to read as follows:
49 § 5-1501C. Powers of attorney excluded from this title. The provisions
50 of this title shall not apply to the following powers of attorney:
51 1. a power of attorney given primarily for a business or commercial
52 purpose, including without limitation:
53 (a) a power to the extent it is coupled with an interest in the
54 subject of the power;
55 (b) a power given to or for the benefit of a creditor in connection
56 with a loan or other credit transaction;
A. 8392--C 5
1 (c) a power given to facilitate transfer or disposition of one or more
2 specific stocks, bonds or other assets, whether real, personal, tangible
3 or intangible;
4 2. a proxy or other delegation to exercise voting rights or management
5 rights with respect to an entity;
6 3. a power created on a form prescribed by a government or govern-
7 mental subdivision, agency or instrumentality for a governmental
8 purpose;
9 4. a power authorizing a third party to prepare, execute, deliver,
10 submit and/or file a document or instrument with a government or govern-
11 mental subdivision, agency or instrumentality or other third party;
12 5. a power authorizing a financial institution or employee of a finan-
13 cial institution to take action relating to an account in which the
14 financial institution holds cash, securities, commodities or other
15 financial assets on behalf of the person giving the power;
16 6. a power given by an individual who is or is seeking to become a
17 director, officer, shareholder, employee, partner, limited partner,
18 member, unit owner or manager of a corporation, partnership, limited
19 liability company, condominium or other legal or commercial entity in
20 his or her capacity as such;
21 7. a power contained in a partnership agreement, limited liability
22 company operating agreement, declaration of trust, declaration of condo-
23 minium, condominium bylaws, condominium offering plan or other agreement
24 or instrument governing the internal affairs of an entity authorizing a
25 director, officer, shareholder, employee, partner, limited partner,
26 member, unit owner, manager or other person to take lawful action relat-
27 ing to such entity;
28 8. a power given to a condominium managing agent to take action in
29 connection with the use, management and operation of a condominium unit;
30 9. a power given to a licensed real estate broker to take action in
31 connection with a listing of real property, mortgage loan, lease or
32 management agreement;
33 10. a power authorizing acceptance of service of process on behalf of
34 the principal; and
35 11. a power created pursuant to authorization provided by a federal or
36 state statute, other than this title, that specifically contemplates
37 creation of the power, including without limitation a power to make
38 health care decisions or decisions involving the disposition of remains.
39 Nothing in this section shall be deemed to prohibit use of a statutory
40 short form power of attorney or a nonstatutory power of attorney in
41 connection with any of the transactions described in this section.
42 § 7. Subdivisions 2, 9 and 10 of section 5-1502A of the general obli-
43 gations law, subdivisions 2 and 9 as amended by chapter 644 of the laws
44 of 2008, are amended to read as follows:
45 2. To sell, to exchange, to convey either with or without covenants,
46 to quit-claim, to release, to surrender, to mortgage, to incumber, to
47 partition or to consent to the partitioning, to create, modify or revoke
48 a trust unless such creation, modification or revocation is a gift tran-
49 saction governed by section 5-1514 of this title, to grant options
50 concerning, to lease or to sublet, or otherwise to dispose of, any
51 estate or interest in land;
52 9. To execute, to acknowledge, to seal and to deliver any deed,
53 creation, modification or revocation of a trust unless such creation,
54 modification or revocation is a gift transaction governed by section
55 5-1514 of this title, mortgage, lease, notice, check or other instrument
A. 8392--C 6
1 which the agent may think useful for the accomplishment of any of the
2 purposes enumerated in this section;
3 10. To prosecute, to defend, to submit to [arbitration] alternative
4 dispute resolution, to settle, and to propose or to accept a compromise
5 with respect to, any claim existing in favor of, or against, the princi-
6 pal based on or involving any real estate transaction or to intervene in
7 any action or proceeding relating thereto;
8 § 8. Subdivisions 2, 7 and 8 of section 5-1502B of the general obli-
9 gations law, subdivisions 2 and 7 as amended by chapter 644 of the laws
10 of 2008, are amended to read as follows:
11 2. To sell, to exchange, to convey either with or without covenants,
12 to release, to surrender, to mortgage, to incumber, to pledge, to
13 hypothecate, to pawn, to create, modify or revoke a trust unless such
14 creation, modification or revocation is a gift transaction governed by
15 section 5-1514 of this title to grant options concerning, to lease or to
16 sublet to others, or otherwise to dispose of any chattel or goods or any
17 interest in any chattel or goods;
18 7. To execute, to acknowledge, to seal and to deliver any conveyance,
19 mortgage, lease, creation, revocation or modification of a trust unless
20 such creation, modification or revocation is a gift transaction governed
21 by section 5-1514 of this title, notice, check or other instrument which
22 the agent may think useful for the accomplishment of any of the purposes
23 enumerated in this section;
24 8. To prosecute, to defend, to submit to [arbitration] alternative
25 dispute resolution, to settle, and to propose or to accept a compromise
26 with respect to, any claim existing in favor of, or against, the princi-
27 pal based on or involving any chattel or goods transaction or to inter-
28 vene in any action or proceeding relating thereto;
29 § 9. Subdivisions 2, 9 and 11 of section 5-1502C of the general obli-
30 gations law, subdivisions 2 and 9 as amended by chapter 644 of the laws
31 of 2008, are amended to read as follows:
32 2. To sell (including short sales), to exchange, to transfer either
33 with or without a guaranty, to release, to surrender, to hypothecate, to
34 pledge, to create, modify or revoke a trust unless such creation,
35 modification or revocation is a gift transaction governed by section
36 5-1514 of this title, to grant options concerning, to loan, to trade in,
37 or otherwise to dispose of any bond, share, instrument of similar char-
38 acter, commodity interest or any instrument with respect thereto;
39 9. To execute, to acknowledge, to seal and to deliver any consent,
40 agreement, authorization, creation, modification or revocation of a
41 trust unless such creation, declaration, modification or revocation is a
42 gift transaction governed by section 5-1514 of this title, assignment,
43 notice, waiver of notice, check, or other instrument which the agent may
44 think useful for the accomplishment of any of the purposes enumerated in
45 this section;
46 11. To prosecute, to defend, to submit to [arbitration] alternative
47 dispute resolution, to settle and to propose or to accept a compromise
48 with respect to, any claim existing in favor of, or against, the princi-
49 pal based on or involving any bond, share or commodity transaction or to
50 intervene in any action or proceeding relating thereto;
51 § 10. Paragraphs (a) and (b) of subdivision 1 of section 5-1502D of
52 the general obligations law, as added by chapter 644 of the laws of
53 2008, are amended to read as follows:
54 (a) with respect to joint accounts existing at the creation of the
55 agency, the authority granted hereby shall not include the power to
56 change the title of the account by the addition of a new joint tenant or
A. 8392--C 7
1 the deletion of an existing joint tenant, unless the authority to make
2 such changes is conveyed in a statutory [major] gifts rider to a statu-
3 tory short form power of attorney or in a non-statutory power of attor-
4 ney signed and dated by the principal with the signature of the princi-
5 pal duly acknowledged in the manner prescribed for the acknowledgement
6 of a conveyance of real property, and which is executed pursuant to the
7 requirements of paragraph (b) of subdivision nine of section 5-1514 of
8 this title, and
9 (b) with respect to totten trust accounts existing at the creation of
10 the agency, the authority granted hereby shall not include the power to
11 add, delete, or otherwise change the designation of beneficiaries in
12 effect for any such accounts, unless the authority to make such addi-
13 tions, deletions or changes is conveyed in a statutory [major] gifts
14 rider to a statutory short form power of attorney or in a non-statutory
15 power of attorney signed and dated by the principal with the signature
16 of the principal duly acknowledged in the manner prescribed for the
17 acknowledgment of a conveyance of real property, and which is executed
18 pursuant to the requirements of paragraph (b) of subdivision nine of
19 section 5-1514 of this title.
20 § 11. Subdivision 15 of section 5-1502D of the general obligations law
21 is amended to read as follows:
22 15. To prosecute, to defend, to submit to [arbitration] alternative
23 dispute resolution, to settle, and to propose or to accept a compromise
24 with respect to, any claim existing in favor of, or against, the princi-
25 pal based on or involving any banking transaction or to intervene in any
26 action or proceeding relating thereto;
27 § 12. Subdivisions 1, 2 and 8 of section 5-1502E of the general obli-
28 gations law are amended to read as follows:
29 1. To the extent that an agent is permitted by law thus to act for a
30 principal, to discharge and to perform any duty or liability and also to
31 exercise any right, power, privilege or option which the principal has,
32 or claims to have, under any contract of partnership whether the princi-
33 pal is a general or special partner thereunder, to enforce the terms of
34 any such partnership agreement for the protection of the principal, by
35 action, proceeding or otherwise, as the agent shall think to be desira-
36 ble or necessary, and to defend, submit to [arbitration] alternative
37 dispute resolution, settle or compromise any action or other legal
38 proceeding to which the principal is a party because of his membership
39 in said partnership;
40 2. To exercise in person or by proxy or to enforce by action, proceed-
41 ing or otherwise, any right, power, privilege or option which the prin-
42 cipal has as the holder of any bond, share, or other instrument of simi-
43 lar character and to defend, submit to [arbitration] alternative dispute
44 resolution, settle or compromise any action or other legal proceeding to
45 which the principal is a party because of any such bond, share, or other
46 instrument of similar character;
47 8. To prosecute, to defend, to submit to [arbitration] alternative
48 dispute resolution, to settle, and to propose or to accept a compromise
49 with respect to, any claim existing in favor of, or against, the princi-
50 pal based on or involving any business operating transaction or to
51 intervene in any action or proceeding relating thereto;
52 § 13. Subdivisions 1, 3 and 11 of section 5-1502F of the general obli-
53 gations law, subdivisions 1 and 3 as amended by chapter 644 of the laws
54 of 2008, are amended to read as follows:
55 1. To continue, to pay the premium or assessment on, to modify, to
56 rescind, to release or to terminate any contract of life, accident,
A. 8392--C 8
1 health, disability or liability insurance or any combination of such
2 insurance procured by or on behalf of the principal prior to the
3 creation of the agency which insures either the principal or any other
4 person, without regard to whether the principal is or is not a benefici-
5 ary thereunder; provided, however, with respect to life insurance
6 contracts existing at the creation of the agency, the authority granted
7 hereby shall not include the power to add, delete or otherwise change
8 the designation of beneficiaries in effect for any such contract, unless
9 the authority to make such additions, deletions or changes is conveyed
10 in a statutory [major] gifts rider to a statutory short form power of
11 attorney or in a non-statutory power of attorney signed and dated by the
12 principal with the signature of the principal duly acknowledged in the
13 manner prescribed for the acknowledgment of a conveyance of real proper-
14 ty, and which is executed pursuant to the requirements of paragraph (b)
15 of subdivision nine of section 5-1514 of this title;
16 3. To apply for and to receive any available loan on the security of
17 the contract of insurance, whether for the payment of a premium or for
18 the procuring of cash, to surrender and thereupon to receive the cash
19 surrender value, to exercise an election as to beneficiary or mode of
20 payment, to change the manner of paying premiums, and to change or to
21 convert the type of insurance contract, with respect to any contract of
22 life, accident, health, disability or liability insurance as to which
23 the principal has, or claims to have, any one or more of the powers
24 described in this section; provided, however, that the authority granted
25 hereby shall not include the power to add, delete or otherwise change
26 the designation of beneficiaries in effect for any such contract, unless
27 the authority to make such additions, deletions or changes is conveyed
28 in a statutory [major] gifts rider to a statutory short form power of
29 attorney or in a non-statutory power of attorney signed and dated by the
30 principal with the signature of the principal duly acknowledged in the
31 manner prescribed for the acknowledgment of a conveyance of real proper-
32 ty, and which is executed pursuant to the requirements of paragraph (b)
33 of subdivision nine of section 5-1514 of this title;
34 11. To prosecute, to defend, to submit to [arbitration] alternative
35 dispute resolution, to settle, and to propose or to accept a compromise
36 with respect to any claim existing in favor of, or against, the princi-
37 pal based on or involving any insurance transaction or to intervene in
38 any action or proceeding relating thereto;
39 § 14. Subdivision 8 of section 5-1502G of the general obligations law
40 is amended to read as follows:
41 8. To submit to [arbitration] alternative dispute resolution or to
42 settle, and to propose or to accept a compromise with respect to any
43 controversy or claim which affects the estate of a decedent, absentee,
44 infant or incompetent, or the administration of a trust or other fund,
45 in any one of which the principal has, or claims to have, an interest,
46 and to do any and all acts which the agent shall think to be desirable
47 or necessary in effectuating such compromise;
48 § 15. Subdivision 5 of section 5-1502H of the general obligations law
49 is amended to read as follows:
50 5. To submit to [arbitration] alternative dispute resolution, to
51 settle, and to propose or to accept a compromise with respect to, any
52 claim existing in favor of or against the principal, or any litigation
53 to which the principal is, or may become or be designated a party;
54 § 16. Subdivisions 12 and 14 of section 5-1502I of the general obli-
55 gations law, subdivision 14 as added by chapter 644 of the laws of 2008,
56 are amended to read as follows:
A. 8392--C 9
1 12. To prosecute, to defend, to submit to [arbitration] alternative
2 dispute resolution, to settle, and to propose or to accept a compromise
3 with respect to, any claim existing in favor of, or against, the princi-
4 pal based on or involving any transaction enumerated in this section or
5 to intervene in any action or proceeding relating thereto;
6 14. To continue gifts that the principal customarily made to individ-
7 uals and charitable organizations prior to the creation of the agency,
8 provided that [no person or charitable organization may be the recipient
9 of gifts] in any one calendar year [which, in the aggregate,] all such
10 gifts shall not exceed five hundred dollars in the aggregate; and
11 § 17. Subdivisions 2, 4 and 6 of section 5-1502L of the general obli-
12 gations law, subdivisions 2 and 4 as amended by chapter 644 of the laws
13 of 2008 and subdivision 6 as added by chapter 499 of the laws of 1996,
14 are amended 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 [major] gifts rider to a statutory short form
23 power of attorney or in a non-statutory power of attorney signed and
24 dated by the principal with the signature of the principal duly acknowl-
25 edged in the manner prescribed for the acknowledgment of a conveyance of
26 real property, and which is executed pursuant to the requirements of
27 paragraph (b) of subdivision nine of section 5-1514 of this title;
28 4. To prepare, execute and deliver any application, agreement, trust
29 agreement unless such trust agreement is a gift transaction governed by
30 section 5-1514 of this title, authorization, check or other instrument
31 or document which may be required under the terms of any retirement
32 benefit or plan in which the principal has an interest or by the admin-
33 istrator thereof, or which the agent deems useful for the accomplishment
34 of any of the purposes enumerated in this section;
35 6. To prosecute, defend, submit to [arbitration] alternative dispute
36 resolution, settle, and propose or accept a compromise with respect to
37 any claim existing in favor of, or against, the principal based upon or
38 involving any retirement benefit or plan and to intervene in any action
39 or proceeding relating thereto;
40 § 18. Section 5-1503 of the general obligations law, as amended by
41 chapter 644 of the laws of 2008, is amended to read as follows:
42 § 5-1503. Modifications of the statutory short form power of attorney
43 and of the statutory [major] gifts rider. A power of attorney which
44 satisfies the requirements of paragraphs (a), (b) and (c) of subdivision
45 one of section 5-1501B and section 5-1513 of this title is not prevented
46 from being a "statutory short form power of attorney", and a document
47 which satisfies the requirements of section 5-1514 of this title is not
48 prevented from being a "statutory [major] gifts rider" as either of
49 these terms is used in the sections of this title, by the fact that it
50 also contains additional language at the section labeled "modifications"
51 which:
52 1. Eliminates from the statutory short form power of attorney or from
53 the statutory [major] gifts rider one or more of the powers enumerated
54 in one or more of the constructional sections of this title with respect
55 to a subdivision of the statutory short form power of attorney or of the
56 statutory [major] gifts rider, affirmatively chosen by the principal; or
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1 2. Supplements one or more of the powers enumerated in one or more of
2 the constructional sections in this title with respect to a subdivision
3 of the statutory short form power of attorney or of the statutory
4 [major] gifts rider, affirmatively chosen by the principal, by specif-
5 ically listing additional powers of the agent; or
6 3. Makes some additional provision which is not inconsistent with the
7 other provisions of the statutory short form power of attorney or of the
8 statutory [major] gifts rider, including a provision revoking one or
9 more powers of attorney previously executed by the principal.
10 § 19. The opening paragraph of subdivision 1 of section 5-1504 of the
11 general obligations law, as amended by chapter 644 of the laws of 2008,
12 is amended to read as follows:
13 No third party located or doing business in this state shall refuse,
14 without reasonable cause, to honor a statutory short form power of
15 attorney properly executed in accordance with section 5-1501B of this
16 title, including a statutory short form power of attorney which is
17 supplemented by a statutory [major] gifts rider, or a statutory short
18 form power of attorney properly executed in accordance with the laws in
19 effect at the time of its execution.
20 § 20. Subparagraphs 1 and 9 of paragraph (a) of subdivision 1 of
21 section 5-1504 of the general obligations law, as amended by chapter 644
22 of the laws of 2008, are amended to read as follows:
23 (1) the refusal by the agent to provide an original power of attorney
24 or a copy certified by an attorney pursuant to [rule] section twenty-one
25 hundred five of the civil practice law and rules, or by a court or other
26 government entity;
27 (9) the refusal by a title insurance company to underwrite title
28 insurance for a [transfer] gift of real property made pursuant to a
29 [major] statutory gifts rider or non-statutory power of attorney that
30 does not contain express instructions or purposes of the principal.
31 § 21. Paragraph (b) of subdivision 1 of section 5-1504 of the general
32 obligations law, as amended by chapter 644 of the laws of 2008, is
33 amended to read as follows:
34 (b) It shall be deemed unreasonable for a third party to refuse to
35 honor a statutory short form power of attorney, including a statutory
36 short form power of attorney which is supplemented by a statutory
37 [major] gifts rider, or a statutory short form power of attorney proper-
38 ly executed in accordance with the laws in effect at the time of its
39 execution, if the only reason for the refusal is any of the following:
40 (1) the power of attorney is not on a form prescribed by the third
41 party to whom the power of attorney is presented.
42 (2) there has been a lapse of time since the execution of the power of
43 attorney.
44 (3) on the face of the statutory short form power of attorney, there
45 is a lapse of time between the date of acknowledgment of the signature
46 of the principal and the date of acknowledgment of the signature of any
47 agent.
48 § 22. Subdivisions 2, 3 and 5 of section 5-1504 of the general obli-
49 gations law, subdivisions 2 and 3 as amended and subdivision 5 as added
50 by chapter 644 of the laws of 2008, are amended and a new subdivision 7
51 is added to read as follows:
52 2. Except as provided in subdivision three of this section, it shall
53 be deemed unlawful for a third party to unreasonably refuse to honor a
54 properly executed statutory short form power of attorney, including a
55 statutory short form power of attorney which is supplemented by a statu-
56 tory [major] gifts rider, or a statutory short form power of attorney
A. 8392--C 11
1 properly executed in accordance with the laws in effect at the time of
2 its execution. A special proceeding as authorized by section 5-1510 of
3 this title shall be the exclusive remedy for a violation of this
4 section.
5 3. In the absence of actual knowledge that the principal lacked capac-
6 ity to execute a statutory short form power of attorney or that the
7 statutory short form power of attorney was procured through fraud,
8 duress or undue influence, no third party receiving and retaining a
9 properly executed statutory short form power of attorney, including a
10 statutory short form power of attorney which is supplemented by a statu-
11 tory [major] gifts rider or a statutory short form power of attorney
12 properly executed in accordance with the laws in effect at the time of
13 its execution, or a complete photostatic copy of the properly executed
14 original thereof, nor any officer, agent, attorney-in-fact or employee
15 of such third party shall incur any liability by reason of acting upon
16 the authority thereof unless the third party shall have received actual
17 notice of the revocation or termination of such power of attorney.
18 If a principal maintains an account at a financial institution, the
19 financial institution is deemed to have actual notice after it has had a
20 reasonable opportunity to act on a written notice of the revocation or
21 termination following its receipt of the same at its office where such
22 account is located.
23 5. When the power of attorney is presented to a third party, it shall
24 not be deemed unreasonable for a third party to require the agent to
25 execute an acknowledged affidavit pursuant to this subdivision stating
26 that the power of attorney is in full force and effect. Such an affida-
27 vit is conclusive proof to the third party relying on the power of
28 attorney that the power of attorney is valid and effective, and has not
29 been terminated [or], revoked or modified, except as to any third party
30 who had actual notice that the power of attorney had terminated [or],
31 been revoked or been modified prior to the execution of the affidavit.
32 Such affidavit shall state that:
33 (a) the agent does not have, at the time of the transaction, actual
34 notice of the termination or revocation of the power of attorney, or
35 notice of any facts indicating that the power of attorney has been
36 terminated or revoked;
37 (b) the agent does not have, at the time of the transaction, actual
38 notice that the power of attorney has been modified in any way that
39 would affect the ability of the agent to authorize or engage in the
40 transaction, or notice of any facts indicating that the power of attor-
41 ney has been so modified; [and]
42 (c) if the agent was named as a successor agent, the prior agent is no
43 longer able or willing to serve[.]; and
44 (d) if the agent has been the principal's spouse, the power of attor-
45 ney expressly provides that divorce or annulment as defined in subpara-
46 graph two of paragraph (f) of section 5-1.4 of the estates, powers and
47 trusts law does not terminate the agent's authority thereunder, or the
48 agent does not have actual notice that the marriage has been terminated
49 by divorce or annulment as defined in subparagraph two of paragraph (f)
50 of section 5-1.4 of the estates, powers and trusts law at the time of
51 the transaction.
52 7. A statutory short form power of attorney or a non-statutory power
53 of attorney that meets the requirements of subdivision one of section
54 5-1501B of this title shall be accepted for recording so long as it has
55 been signed by one agent named therein whose signature has been acknowl-
56 edged. If two or more agents acting on behalf of the principal are
A. 8392--C 12
1 required to act together, the power of attorney shall be accepted for
2 recording as long as their signatures have been acknowledged. When a
3 successor or co-agent authorized to act separately from any other agents
4 presents a certified copy of a recorded statutory short form power of
5 attorney or non-statutory power of attorney with the agent's signature
6 acknowledged, the instrument shall be accepted for recording.
7 § 23. Section 5-1505 of the general obligations law, as added by chap-
8 ter 644 of the laws of 2008, is amended to read as follows:
9 § 5-1505. Standard of care; fiduciary [duty] duties; compelling
10 disclosure of record. 1. Standard of care. In dealing with property of
11 the principal, an agent shall observe the standard of care that would be
12 observed by a prudent person dealing with property of another.
13 2. Fiduciary [duty] duties. (a) An agent acting under a power of
14 attorney has a fiduciary [duty to] relationship with the principal. The
15 fiduciary [duty includes] duties include but are not limited to each of
16 the following obligations:
17 (1) To act according to any instructions from the principal or, where
18 there are no instructions, in the best interest of the principal, and to
19 avoid conflicts of interest.
20 (2) To keep the principal's property separate and distinct from any
21 other property owned or controlled by the agent, except for property
22 that is jointly owned by the principal and agent at the time of the
23 execution of the power of attorney, and property that becomes jointly
24 owned after the execution of the power of attorney as the result of the
25 agent's acquisition of an interest in the principal's property by reason
26 of the agent's exercise of authority granted in a statutory [major]
27 gifts rider or in a non-statutory power of attorney signed and dated by
28 the principal with the signature of the principal duly acknowledged in
29 the manner prescribed for the acknowledgment of a conveyance of real
30 property, and which is executed pursuant to the requirements of para-
31 graph (b) of subdivision nine of section 5-1514 of this title. The agent
32 may not [transfer] make gifts to the principal's property to himself or
33 herself without specific authorization in a power of attorney.
34 (3) To keep a record of all receipts, disbursements, and transactions
35 entered into by the agent on behalf of the principal and to make such
36 record and power of attorney available to the principal or to third
37 parties at the request of the principal. The agent shall make such
38 record and a copy of the power of attorney available within fifteen days
39 of a written request by any of the following:
40 (i) a monitor;
41 (ii) a co-agent or successor agent acting under the power of attorney;
42 (iii) a government entity, or official thereof, investigating a report
43 that the principal may be in need of protective or other services, or
44 investigating a report of abuse or neglect;
45 (iv) a court evaluator appointed pursuant to section 81.09 of the
46 mental hygiene law;
47 (v) a guardian ad litem appointed pursuant to section seventeen
48 hundred fifty-four of the surrogate's court procedure act;
49 (vi) the guardian or conservator of the estate of the principal, if
50 such record has not already been provided to the court evaluator or
51 guardian ad litem; or
52 (vii) the personal representative of the estate of a deceased princi-
53 pal if such record has not already been provided to the guardian or
54 conservator of the estate of the principal.
55 The failure of the agent to make the record available pursuant to this
56 paragraph may result in a special proceeding under subdivision one of
A. 8392--C 13
1 section 5-1510 of this title. [Such proceeding shall be the exclusive
2 remedy to compel the agent to provide such record.]
3 (b) The agent may be subject to liability for conduct or omissions
4 which violate [the] any fiduciary duty.
5 (c) The agent is not liable to third parties for any act pursuant to a
6 power of attorney if the act was authorized at the time and the act did
7 not violate subdivision one or two of this section.
8 3. Resignation. (a) An agent who has signed the power of attorney may
9 resign by giving written notice to the principal and the agent's co-a-
10 gent, successor agent or the monitor, if one has been named, or the
11 principal's guardian if one has been appointed. If no co-agent, succes-
12 sor agent, monitor or guardian is known to the agent and the principal
13 is incapacitated or the agent has notice of any facts indicating the
14 principal's incapacity, the agent may give written notice to a govern-
15 ment entity having authority to protect the welfare of the principal, or
16 may petition the court to approve the resignation.
17 (b) The principal may provide for alternative means for an agent's
18 resignation in the power of attorney.
19 § 24. Subdivision 2 of section 5-1508 of the general obligations law,
20 as added by chapter 644 of the laws of 2008, is amended to read as
21 follows:
22 2. A principal may designate one or more successor agents to serve, if
23 [every] any initial or predecessor agent resigns, dies, becomes incapac-
24 itated, is not qualified to serve or declines to serve. Unless the prin-
25 cipal provides otherwise in the power of attorney, a successor agent has
26 the same authority as that granted to an initial agent. A principal may
27 provide for specific succession rules.
28 § 25. Section 5-1508 of the general obligations law is amended by
29 adding a new subdivision 4 to read as follows:
30 4. Any person, other than an estate or a trust, may act as an agent,
31 co-agent or successor agent under a power of attorney.
32 § 26. Subdivisions 2, 3, 4, 5 and 6 of section 5-1511 of the general
33 obligations law, as added by chapter 644 of the laws of 2008, are
34 amended to read as follows:
35 2. An agent's authority terminates when:
36 (a) the principal revokes the agent's authority;
37 (b) the agent dies, becomes incapacitated or resigns;
38 (c) the agent's marriage to the principal is terminated by divorce[,]
39 or annulment [or declaration of nullity], as defined in subparagraph two
40 of paragraph (f) of section 5-1.4 of the estates, powers and trusts law,
41 unless the power of attorney expressly provides otherwise. If the
42 authority of an agent is revoked solely by this subdivision, it shall be
43 revived by the principal's remarriage to the former spouse; or
44 (d) the power of attorney terminates.
45 3. A principal may revoke a power of attorney[;]:
46 (a) in accordance with the terms of the power of attorney; or
47 (b) by delivering a [written, signed and dated] revocation of the
48 power of attorney [as follows:
49 (1)] to the agent[, and the] in person or by sending a signed and
50 dated revocation by mail, courier, electronic transmission or facsimile
51 to the agent's last known address. The agent must comply with the prin-
52 cipal's revocation notwithstanding the actual or perceived incapacity of
53 the principal unless the principal is subject to a guardianship under
54 article eighty-one of the mental hygiene law[; and
55 (2) to any third party that the principal has reason to believe has
56 received, retained or acted upon, the power of attorney].
A. 8392--C 14
1 4. Where [the] a power of attorney has been recorded pursuant to
2 section two hundred ninety-four of the real property law, the principal
3 shall also record [a written] the revocation in the office in which the
4 power of attorney is recorded pursuant to section three hundred twenty-
5 six of the real property law, provided the revocation complies with
6 section three hundred seven of the state technology law. [Notwithstand-
7 ing the recording of a revocation, a third party must have actual notice
8 of the revocation for the revocation to be effective.]
9 5. (a) Termination of an agent's authority or of the power of attorney
10 is not effective as to any third party who has not received actual
11 notice of the termination and acts in good faith under the power of
12 attorney. Any action so taken, unless otherwise invalid or unenforcea-
13 ble, shall bind the principal and the principal's successors in inter-
14 est. A financial institution is deemed to have actual notice after it
15 has had a reasonable opportunity to act on a written notice of the revo-
16 cation or termination following receipt of the same at its office where
17 an account is located.
18 (b) Termination of an agent's authority or of the power of attorney is
19 not effective as to the agent until the agent has received a revocation
20 as required by subdivision three of this section. An agent is deemed to
21 have received a revocation when it has been delivered to the agent in
22 person, or within a reasonable time after it has been sent by mail,
23 courier, electronic transmission or facsimile in accordance with subdi-
24 vision three of this section.
25 6. [Unless the principal expressly provides otherwise, the execution
26 of a power of attorney revokes any and all prior powers of attorney
27 executed by the principal] The execution of a power of attorney does not
28 revoke any power of attorney previously executed by the principal.
29 § 27. Section 5-1512 of the general obligations law, as added by chap-
30 ter 644 of the laws of 2008, is amended to read as follows:
31 § 5-1512. Powers of attorney executed in other jurisdictions. [A]
32 Notwithstanding the provisions of section 5-1501B of this title, a power
33 of attorney executed in another state or jurisdiction in compliance with
34 the law of that state or jurisdiction or the law of this state is valid
35 in this state, regardless of whether the principal is a domiciliary of
36 this state. A power of attorney that complies with section 5-1501B of
37 this title and is executed in another state or jurisdiction by a domici-
38 liary of this state is valid in this state. A power of attorney executed
39 in this state by a domiciliary of another state or jurisdiction in
40 compliance with the law of that state or jurisdiction or the law of this
41 state is valid in this state.
42 § 28. Section 5-1513 of the general obligations law, as added by chap-
43 ter 644 of the laws of 2008, is amended to read as follows:
44 § 5-1513. Statutory short form power of attorney. 1. The use of the
45 following form in the creation of a power of attorney is lawful, and,
46 when used, and executed in accordance with subdivision one of section
47 5-1501B of this title, it shall be construed as a statutory short form
48 power of attorney in accordance with the provisions of this title:
49 "POWER OF ATTORNEY
50 NEW YORK STATUTORY SHORT FORM
51 (a) CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important
52 document. As the "principal," you give the person whom you choose (your
53 "agent") authority to spend your money and sell or dispose of your prop-
54 erty during your lifetime without telling you. You do not lose your
A. 8392--C 15
1 authority to act even though you have given your agent similar authori-
2 ty.
3 When your agent exercises this authority, he or she must act according
4 to any instructions you have provided or, where there are no specific
5 instructions, in your best interest. "Important Information for the
6 Agent" at the end of this document describes your agent's responsibil-
7 ities.
8 Your agent can act on your behalf only after signing the Power of
9 Attorney before a notary public.
10 You can request information from your agent at any time. If you are
11 revoking a prior Power of Attorney [by executing this Power of Attor-
12 ney], you should provide written notice of the revocation to your prior
13 agent(s) and to any third parties who may have acted upon it, including
14 the financial institutions where your accounts are located.
15 You can revoke or terminate your Power of Attorney at any time for any
16 reason as long as you are of sound mind. If you are no longer of sound
17 mind, a court can remove an agent for acting improperly.
18 Your agent cannot make health care decisions for you. You may execute
19 a "Health Care Proxy" to do this.
20 The law governing Powers of Attorney is contained in the New York
21 General Obligations Law, Article 5, Title 15. This law is available at a
22 law library, or online through the New York State Senate or Assembly
23 websites, www.senate.state.ny.us or www.assembly.state.ny.us.
24 If there is anything about this document that you do not understand,
25 you should ask a lawyer of your own choosing to explain it to you.
26 (b) DESIGNATION OF AGENT(S):
27 I, _______________________________________________, hereby appoint:
28 name and address of principal
29 _____________________________________________________as my agent(s)
30 name(s) and address(es) of agent(s)
31 If you designate more than one agent above, they must act together
32 unless you initial the statement below.
33 ( ) My agents may act SEPARATELY.
34 (c) DESIGNATION OF SUCCESSOR AGENT(S): (OPTIONAL)
35 If [every] any agent designated above is unable or unwilling to serve,
36 I appoint as my successor agent(s):
37 _______________________________________________________________
38 name(s) and address(es) of successor agent(s)
39 Successor agents designated above must act together unless you initial
40 the statement below.
41 ( ) My successor agents may act SEPARATELY.
42 You may provide for specific succession rules in this section. Insert
43 specific succession provisions here:
44 (d) This POWER OF ATTORNEY shall not be affected by my subsequent inca-
45 pacity unless I have stated otherwise below, under "Modifications".
46 (e) This POWER OF ATTORNEY [REVOKES] DOES NOT REVOKE any [and all prior]
47 Powers of Attorney previously executed by me unless I have stated other-
48 wise below, under "Modifications."
A. 8392--C 16
1 If [your are] you do NOT [revoking] intend to revoke your prior Powers
2 of Attorney, and if you [are granting] have granted the same authority
3 in [two or more Powers] this Power of Attorney[, you must also indicate
4 under "Modifications" whether the agents given these powers] as you
5 granted to another agent in a prior Power of Attorney, each agent can
6 act separately unless you indicate under "Modifications" that the agents
7 with the same authority are to act together [or separately].
8 (f) GRANT OF AUTHORITY:
9 To grant your agent some or all of the authority below, either
10 (1) Initial the bracket at each authority you grant, or
11 (2) Write or type the letters for each authority you grant on the
12 blank line at (P), and initial the bracket at (P). If you initial
13 (P), you do not need to initial the other lines.
14 I grant authority to my agent(s) with respect to the following
15 subjects as defined in sections 5-1502A through 5-1502N of the New York
16 General Obligations Law:
17 ( ) (A) real estate transactions;
18 ( ) (B) chattel and goods transactions;
19 ( ) (C) bond, share, and commodity transactions;
20 ( ) (D) banking transactions;
21 ( ) (E) business operating transactions;
22 ( ) (F) insurance transactions;
23 ( ) (G) estate transactions;
24 ( ) (H) claims and litigation;
25 ( ) (I) personal and family maintenance. If you grant your agent
26 this authority, it will allow the agent to make gifts
27 that you customarily have made to individuals, including
28 the agent, and charitable organizations. The total
29 amount of all such gifts in any one calendar year cannot
30 exceed five hundred dollars;
31 ( ) (J) benefits from governmental programs or civil or military
32 service;
33 ( ) (K) health care billing and payment matters; records,
34 reports, and statements;
35 ( ) (L) retirement benefit transactions;
36 ( ) (M) tax matters;
37 ( ) (N) all other matters;
38 ( ) (O) full and unqualified authority to my agent(s) to dele-
39 gate any or all of the foregoing powers to any person or
40 persons whom my agent(s) select;
41 ( ) (P) EACH of the matters identified by the following
42 letters______.
43 You need not initial the other lines if you initial line (P).
44 (g) MODIFICATIONS: (OPTIONAL)
45 In this section, you may make additional provisions, including
46 language to limit or supplement authority granted to your agent.
47 However, you cannot use this Modifications section to grant your agent
48 authority to make [major] gifts or changes to interests in your proper-
49 ty. If you wish to grant your agent such authority, you MUST complete
50 the Statutory [Major] Gifts Rider.
51 (h) [MAJOR GIFTS AND OTHER TRANSFERS] CERTAIN GIFT TRANSACTIONS: STATU-
52 TORY [MAJOR] GIFTS RIDER (OPTIONAL)
A. 8392--C 17
1 In order to authorize your agent to make [major] gifts [and other
2 transfers of your property] in excess of an annual total of $500 for all
3 gifts described in (I) of the grant of authority section of this docu-
4 ment (under personal and family maintenance), you must initial the
5 statement below and execute a Statutory [Major] Gifts Rider at the same
6 time as this instrument. Initialing the statement below by itself does
7 not authorize your agent to make [major] gifts [and other transfers].
8 The preparation of the Statutory [Major] Gifts Rider should be super-
9 vised by a lawyer.
10 ( )[(SMGR)] (SGR) I grant my agent authority to make [major]
11 gifts [and other transfers of my property,] in accordance with the terms
12 and conditions of the Statutory [Major] Gifts Rider that supplements
13 this Statutory Power of Attorney.
14 (i) DESIGNATION OF MONITOR(S): (OPTIONAL)
15 If you wish to appoint monitor(s), initial and fill in the section
16 below:
17 ( ) I wish to designate ______________________, whose address(es)
18 is (are) ____________________________________________________________,
19 as monitor(s). Upon the request of the monitor(s), my agent(s) must
20 provide the monitor(s) with a copy of the power of attorney and a record
21 of all transactions done or made on my behalf. Third parties holding
22 records of such transactions shall provide the records to the monitor(s)
23 upon request.
24 (j) COMPENSATION OF AGENT(S): (OPTIONAL)
25 Your agent is entitled to be reimbursed from your assets for reason-
26 able expenses incurred on your behalf. If you ALSO wish your agent(s) to
27 be compensated from your assets for services rendered on your behalf,
28 initial the statement below. If you wish to define "reasonable compen-
29 sation", you may do so above, under "Modifications".
30 ( ) My agent(s) shall be entitled to reasonable compensation for
31 services rendered.
32 (k) ACCEPTANCE BY THIRD PARTIES: I agree to indemnify the third party
33 for any claims that may arise against the third party because of reli-
34 ance on this Power of Attorney. I understand that any termination of
35 this Power of Attorney, whether the result of my revocation of the Power
36 of Attorney or otherwise, is not effective as to a third party until the
37 third party has actual notice or knowledge of the termination.
38 (l) TERMINATION: This Power of Attorney continues until I revoke it or
39 it is terminated by my death or other event described in section 5-1511
40 of the General Obligations Law.
41 Section 5-1511 of the General Obligations Law describes the manner in
42 which you may revoke your Power of Attorney, and the events which termi-
43 nate the Power of Attorney.
44 (m) SIGNATURE AND ACKNOWLEDGMENT:
45 In Witness Whereof I have hereunto signed my name on ___________,20___.
46 PRINCIPAL signs here: ==>__________________________________________
47 (acknowledgment)
A. 8392--C 18
1 (n) IMPORTANT INFORMATION FOR THE AGENT:
2 When you accept the authority granted under this Power of Attorney, a
3 special legal relationship is created between you and the principal.
4 This relationship imposes on you legal responsibilities that continue
5 until you resign or the Power of Attorney is terminated or revoked. You
6 must:
7 (1) act according to any instructions from the principal, or, where
8 there are no instructions, in the principal's best interest;
9 (2) avoid conflicts that would impair your ability to act in the prin-
10 cipal's best interest;
11 (3) keep the principal's property separate and distinct from any
12 assets you own or control, unless otherwise permitted by law;
13 (4) keep a record or all receipts, payments, and transactions
14 conducted for the principal; and
15 (5) disclose your identity as an agent whenever you act for the prin-
16 cipal by writing or printing the principal's name and signing your own
17 name as "agent" in either of the following [manner] manners: (Princi-
18 pal's Name) by (Your Signature) as Agent, or (your signature) as Agent
19 for (Principal's Name).
20 You may not use the principal's assets to benefit yourself or anyone
21 else or [give major] make gifts to yourself or anyone else unless the
22 principal has specifically granted you that authority in this [Power of
23 Attorney or in a Statutory Major Gifts Rider attached to this Power of
24 Attorney] document, which is either a Statutory Gifts Rider attached to
25 a Statutory Short Form Power of Attorney or a Non-Statutory Power of
26 Attorney. If you have that authority, you must act according to any
27 instructions of the principal or, where there are no such instructions,
28 in the principal's best interest. You may resign by giving written
29 notice to the principal and to any co-agent, successor agent, monitor if
30 one has been named in this document, or the principal's guardian if one
31 has been appointed. If there is anything about this document or your
32 responsibilities that you do not understand, you should seek legal
33 advice.
34 Liability of agent:
35 The meaning of the authority given to you is defined in New York's
36 General Obligations Law, Article 5, Title 15. If it is found that you
37 have violated the law or acted outside the authority granted to you in
38 the Power of Attorney, you may be liable under the law for your
39 violation.
40 (o) AGENT'S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT:
41 It is not required that the principal and the agent(s) sign at the
42 same time, nor that multiple agents sign at the same time.
43 I/we, ___________________________________________, have read the forego-
44 ing Power of Attorney. I am/we are the person(s) identified therein as
45 agent(s) for the principal named therein.
46 I/we acknowledge my/our legal responsibilities.
47 Agent(s) sign(s) here:==>__________________________________________
48 (acknowledgment(s))["]
49 (p) SUCCESSOR AGENT'S SIGNATURE AND ACKNOWLEDGMENT OF APPOINTMENT:
A. 8392--C 19
1 It is not required that the principal and the SUCCESSOR agent(s), if
2 any, sign at the same time, nor that multiple SUCCESSOR agents sign at
3 the same time. Furthermore, successor agents can not use this power of
4 attorney unless the agent(s) designated above is/are unable or unwilling
5 to serve.
6 I/we, ___________________________________________, have read the forego-
7 ing Power of Attorney. I am/we are the person(s) identified therein as
8 SUCCESSOR agent(s) for the principal named therein.
9 Successor Agent(s) sign(s) here:==>______________________________________
10 (acknowledgment(s))"
11 § 29. Section 5-1514 of the general obligations law, as added by chap-
12 ter 644 of the laws of 2008, is amended to read as follows:
13 § 5-1514. [Major gifts and other transfers] Certain gift transactions;
14 formal requirements; statutory form. 1. If the principal intends to
15 authorize the agent to make gifts [and transfers] other than gifts
16 authorized by subdivision fourteen of section 5-1502I of this title, the
17 principal must expressly grant such authority either in a statutory
18 [major] gifts rider to a statutory short form power of attorney or in a
19 non-statutory power of attorney executed pursuant to the requirements of
20 paragraph (b) of subdivision nine of this section.
21 2. The principal may authorize the agent to make gifts to the princi-
22 pal's spouse, children and more remote descendents, and parents, not to
23 exceed, for each donee, the annual federal gift tax exclusion amount
24 pursuant to the Internal Revenue Code. For gifts to the principal's
25 children and more remote descendants, and parents, the maximum amount of
26 the gift to each donee shall not exceed twice the gift tax exclusion
27 amount, if the principal's spouse agrees to split gift treatment pursu-
28 ant to the Internal Revenue Code.
29 3. The principal may also authorize the agent to:
30 (a) make gifts up to a specified dollar amount, or unlimited in
31 amount;
32 (b) make gifts to any person or persons;
33 (c) make gifts in any of the following [specified transactions] ways:
34 (1) [open, modify or terminate] opening, modifying or terminating a
35 deposit account in the name of the principal and other joint tenants;
36 (2) [open, modify or terminate] opening, modifying or terminating any
37 other joint account in the name of the principal and other joint
38 tenants;
39 (3) [open, modify or terminate] opening, modifying or terminating a
40 bank account in trust form as described in section 7-5.1 of the estates,
41 powers and trusts law, and designate or change the beneficiary or bene-
42 ficiaries of such account;
43 (4) [open, modify or terminate] opening, modifying or terminating a
44 transfer on death account as described in part four of article thirteen
45 of the estates, powers and trusts law, and designate or change the bene-
46 ficiary or beneficiaries of such account;
47 (5) [change] changing the beneficiary or beneficiaries of any contract
48 of insurance on the life of the principal or annuity contract for the
49 benefit of the principal;
50 (6) [procure] procuring new, different or additional contracts of
51 insurance on the life of the principal or annuity contracts for the
52 benefit of the principal and designate the beneficiary or beneficiaries
53 of any such contract;
A. 8392--C 20
1 (7) [designate or change] designating or changing the beneficiary or
2 beneficiaries of any type of retirement benefit or plan;
3 (8) [create, amend, revoke, or terminate] creating, amending, revoking
4 or terminating an inter vivos trust; and
5 (9) [create, change or terminate] opening, modifying or terminating
6 other property interests or rights of survivorship, and designate or
7 change the beneficiary or beneficiaries therein.
8 A gift [or other transfer] to an individual authorized by this subdi-
9 vision may be made outright, by exercise or release of a presently exer-
10 cisable general or special power of appointment held by the principal,
11 to a trust established or created for such individual, to a Uniform
12 Transfers to Minors Act account for such individual (regardless of who
13 is the custodian), or to a tuition savings account or prepaid tuition
14 plan as defined under section 529 of the Internal Revenue Code for the
15 benefit of such individual (without regard to who is the account owner
16 or responsible individual for such account).
17 4. An agent may not:
18 (a) exercise any authority described in subdivision two or three of
19 this section unless such authority is expressly granted in a statutory
20 [major] gifts rider to a statutory short form power of attorney or in a
21 non-statutory power of attorney executed pursuant to the requirements of
22 paragraph (b) of subdivision nine of this section;
23 (b) make a gift to himself or herself or create in himself or herself
24 an interest in the principal's property pursuant to any grant of author-
25 ity described in subdivision two or three of this section unless such
26 authority is expressly granted in a statutory [major] gifts rider to a
27 statutory short form power of attorney or in a non-statutory power of
28 attorney executed pursuant to the requirements of paragraph (b) of
29 subdivision nine of this section.
30 5. Any authority granted to an agent pursuant to subdivision two or
31 three or paragraph (b) of subdivision four of this section must be exer-
32 cised according to any instructions in this document or in any other
33 writing provided by the principal regarding the exercise of any authori-
34 ty, or otherwise for purposes which the agent reasonably deems to be in
35 the best interest of the principal, specifically including financial,
36 estate, or tax planning, including minimization of income, estate,
37 inheritance, generation-skipping transfer or gift taxes.
38 6. Construction of the provisions of the statutory [major] gifts
39 rider. (a) In a statutory [major] gifts rider to a statutory short form
40 power of attorney, the language "I grant authority to my agent to make
41 gifts to my spouse, children and more remote descendants, and parents,
42 not to exceed, for each donee, the annual federal gift tax exclusion
43 amount pursuant to the Internal Revenue Code. For gifts to my children
44 and more remote descendants, and parents, the maximum amount of the gift
45 to each donee shall not exceed twice the gift tax exclusion amount, if
46 my spouse agrees to split gift treatment pursuant to the Internal Reven-
47 ue Code" must be construed to mean that the principal authorizes the
48 agent:
49 (1) To make gifts on behalf of the principal to the principal's
50 spouse, children and other descendants, and parents. Gifts to a donee
51 shall not exceed in any calendar year the amount of the federal gift tax
52 exclusion available to the principal under section 2503(b) of the Inter-
53 nal Revenue Code. Gifts may be made outright or by exercise or release
54 of a presently exercisable general power or special power of appointment
55 held by the principal, to a trust established or created for such indi-
56 vidual (provided that gifts to such trust qualify for the federal gift
A. 8392--C 21
1 tax exclusion under section 2503(b) or (c) of the Internal Revenue
2 Code), to a Uniform Transfers to Minors Act account for such individual
3 (regardless of who is the custodian), to a tuition savings account or
4 prepaid tuition plan as defined under section 529 of the Internal Reven-
5 ue Code for the benefit of such individual (without regard to who is the
6 account owner of or responsible person for such account);
7 (2) To make gifts up to twice the annual federal gift tax exclusion
8 amount on behalf of both the principal and the principal's spouse, to
9 the principal's children and other descendants, and parents, if the
10 principal's spouse consents to the splitting of such gifts pursuant to
11 section 2513 of the Internal Revenue Code;
12 (3) To consent, pursuant to Section 2513(a) of the Internal Revenue
13 Code, to the splitting of gifts made by the principal's spouse to the
14 principal's children and other descendants in any amount, and to the
15 splitting of gifts made by the principal's spouse to any other persons
16 in amounts not exceeding the aggregate annual gift tax exclusions for
17 both spouses under Section 2503(b) of said Code (or cognate provisions
18 of any successor statute); and
19 (4) To satisfy pledges made to organizations, whether charitable or
20 otherwise, by the principal[; and].
21 (b) Any authority granted to an agent under a statutory [major] gifts
22 rider to a statutory short form power of attorney must be construed to
23 mean that the principal authorizes the agent:
24 (1) To prepare, execute, consent to on behalf of the principal, and
25 file any return, report, declaration or other document required by the
26 laws of the United States, or by any state or political subdivision
27 thereof, or by any foreign country or political subdivision thereof,
28 which the agent deems to be desirable or necessary with respect to any
29 gift made under the authority of this section;
30 (2) To execute, acknowledge, seal and deliver any deed, assignment,
31 agreement, trust agreement, authorization, check, or other instrument
32 which the agent deems useful for the accomplishment of any of the
33 purposes enumerated in this section;
34 (3) To prosecute, defend, submit to alternative dispute resolution,
35 settle and propose or accept a compromise with respect to any claim
36 existing in favor of or against the principal based on or involving any
37 gift transaction or to intervene in any related action or proceeding;
38 (4) To hire, discharge and compensate any attorney, accountant, expert
39 witness, or other assistant or assistants when the agent deems that
40 action to be desirable for the proper execution by the agent of any of
41 the authorities described in this section, and for the keeping of needed
42 records thereof; and
43 (5) In general, and in addition to but not in contravention of all the
44 specific acts listed in this section, to do any other act or acts which
45 the agent deems desirable or necessary to complete any such gift on
46 behalf of the principal.
47 (c) The authority explicitly authorized in this section shall be
48 construed to include any like authority authorized in any other section
49 of this title. Accordingly, such like authorities as are authorized in
50 any other section of this title may not be exercised by the agent unless
51 they are expressly granted to the agent in the statutory [major] gifts
52 rider or in a non-statutory power of attorney executed pursuant to the
53 requirements of paragraph (b) of subdivision nine of this section.
54 (d) The statutory [major] gifts rider may be modified pursuant to
55 section 5-1503 of this title to contain additional provisions authoriz-
A. 8392--C 22
1 ing the agent to make any or all of the transactions specified in subdi-
2 vision three of this section.
3 7. All authority described in this section shall be exercisable equal-
4 ly with respect to a gift of any property in which the principal is
5 interested at the time the power of attorney is given or in which the
6 principal becomes interested after that time, and whether located in
7 this state or elsewhere.
8 8. If, after naming the spouse as a permissible recipient of gifting
9 [or other transfers], the [principal is divorced, his or her marriage is
10 annulled or its nullity declared, the] principal's marriage is termi-
11 nated by divorce[,] or annulment[, declaration of nullity or dissol-
12 ution], as defined in subparagraph two of paragraph (f) of section 5-1.4
13 of the estates, powers and trusts law, the divorce or annulment revokes
14 the authority to gift to the former spouse, unless the statutory [major]
15 gifts rider or the non-statutory power of attorney executed pursuant to
16 the requirements of paragraph (b) of subdivision nine of this section
17 expressly provides otherwise. If the authority to gift to the former
18 spouse is revoked solely by this subdivision, it shall be revived by the
19 principal's remarriage to the former spouse.
20 9. To be valid, a statutory [major] gifts rider to a statutory short
21 form power of attorney must:
22 (a) Be typed or printed using letters which are legible or of clear
23 type no less than twelve point in size, or, if in writing, a reasonable
24 equivalent thereof.
25 (b) Be signed and dated by a principal with capacity, with the signa-
26 ture of the principal duly acknowledged in the manner prescribed for the
27 acknowledgment of a conveyance of real property, and witnessed by two
28 persons who are not named in the instrument as permissible recipients of
29 gifts [or other transfers], in the manner described [at paragraph] in
30 subparagraph two of [subdivision] paragraph (a) of section 3-2.1 of the
31 estates, powers and trusts law. The person who takes the acknowledg-
32 ment, under this paragraph, may also serve as one of the witnesses.
33 (c) Be accompanied by a statutory short form power of attorney in
34 which the authority [(SMGR)] (SGR) is initialed by the principal.
35 (d) Be executed simultaneously with the statutory short form power of
36 attorney and in the manner provided in this section.
37 10. The use of the following shall be construed as the "Statutory
38 [Major] Gifts Rider" for a statutory short form power of attorney:
39 "POWER OF ATTORNEY
40 NEW YORK STATUTORY [MAJOR] GIFTS RIDER
41 AUTHORIZATION [TO MAKE MAJOR GIFTS OR
42 OTHER TRANSFERS] FOR CERTAIN GIFT TRANSACTIONS
43 CAUTION TO THE PRINCIPAL: This OPTIONAL rider allows you to authorize
44 your agent to make [major] gifts in excess of an annual total of $500
45 for all gifts described in (I) of the Grant of Authority section of the
46 statutory short form Power of Attorney (under personal and family main-
47 tenance), or [other transfers of your money or other property] certain
48 other gift transactions during your lifetime. You do not have to
49 execute this rider if you only want your agent to make gifts described
50 in (I) of the Grant of Authority section of the statutory short form
51 Power of Attorney and you initialed "(I)" on that section of that form.
52 Granting any of the following authority to your agent gives your agent
53 the authority to take actions which could significantly reduce your
54 property or change how your property is distributed at your death.
55 ["Major gifts or other transfers"] "Certain gift transactions" are
56 described in section 5-1514 of the General Obligations Law. This [Major]
A. 8392--C 23
1 Gifts Rider does not require your agent to exercise granted authority,
2 but when he or she exercises this authority, he or she must act accord-
3 ing to any instructions you provide, or otherwise in your best interest.
4 This [Major] Gifts Rider and the Power of Attorney it supplements must
5 be read together as a single instrument.
6 Before signing this document authorizing your agent to make [major]
7 gifts [and other transfers], you should seek legal advice to ensure that
8 your intentions are clearly and properly expressed.
9 (a) GRANT OF LIMITED AUTHORITY TO MAKE GIFTS
10 Granting gifting authority to your agent gives your agent the authori-
11 ty to take actions which could significantly reduce your property.
12 If you wish to allow your agent to make gifts to himself or herself,
13 you must separately grant that authority in subdivision (c) below.
14 To grant your agent the gifting authority provided below, initial the
15 bracket to the left of the authority.
16 ( ) I grant authority to my agent to make gifts to my spouse, children
17 and more remote descendants, and parents, not to exceed, for each donee,
18 the annual federal gift tax exclusion amount pursuant to the Internal
19 Revenue Code. For gifts to my children and more remote descendants, and
20 parents, the maximum amount of the gift to each donee shall not exceed
21 twice the gift tax exclusion amount, if my spouse agrees to split gift
22 treatment pursuant to the Internal Revenue Code.
23 This authority must be exercised pursuant to my instructions, or other-
24 wise for purposes which the agent reasonably deems to be in my best
25 interest.
26 (b) MODIFICATIONS:
27 Use this section if you wish to authorize gifts in amounts smaller
28 than the gift tax exclusion amount, in amounts in excess of the [above
29 amount] gift tax exclusion amount, gifts to other beneficiaries, or
30 other [types of transfers] gift transactions.
31 Granting such authority to your agent gives your agent the authority to
32 take actions which could significantly reduce your property and/or
33 change how your property is distributed at your death. If you wish to
34 authorize your agent to make gifts [or transfers] to himself or herself,
35 you must separately grant that authority in subdivision (c) below.
36 ( ) I grant the following authority to my agent to make gifts [or trans-
37 fers] pursuant to my instructions, or otherwise for purposes which the
38 agent reasonably deems to be in my best interest[.]:
39 (c) GRANT OF SPECIFIC AUTHORITY FOR AN AGENT TO MAKE [MAJOR] GIFTS [OR
40 OTHER TRANSFERS] TO HIMSELF OR HERSELF: (OPTIONAL)
41 If you wish to authorize your agent to make gifts [or transfers] to
42 himself or herself, you must grant that authority in this section, indi-
43 cating to which agent(s) the authorization is granted, and any limita-
44 tions and guidelines.
45 ( ) I grant specific authority for the following agent(s) to make the
46 following [major] gifts [or other transfers] to himself or herself:
47 This authority must be exercised pursuant to my instructions, or other-
48 wise for purposes which the agent reasonably deems to be in my best
49 interest.
50 (d) ACCEPTANCE BY THIRD PARTIES: I agree to indemnify the third party
51 for any claims that may arise against the third party because of reli-
52 ance on this [Major] Statutory Gifts Rider.
53 (e) SIGNATURE OF PRINCIPAL AND ACKNOWLEDGMENT:
54 In Witness Whereof I have hereunto signed my name on _________________,
55 20____.
56 PRINCIPAL signs here:
A. 8392--C 24
1 ________________________________
2 [(acknowledgement)] (acknowledgment)
3 (f) SIGNATURES OF WITNESSES:
4 By signing as a witness, I acknowledge that the principal signed the
5 [Major] Statutory Gifts Rider in my presence and the presence of the
6 other witness, or that the principal acknowledged to me that the princi-
7 pal's signature was affixed by him or her or at his or her direction. I
8 also acknowledge that the principal has stated that this [Major] Statu-
9 tory Gifts Rider reflects his or her wishes and that he or she has
10 signed it voluntarily. I am not named herein as a permissible recipient
11 of [major] gifts.
12 ___________________________ _________________________
13 Signature of witness 1 Signature of witness 2
14 ___________________________ _________________________
15 Date Date
16 ___________________________ _________________________
17 Print name Print name
18 ___________________________ _________________________
19 Address Address
20 ___________________________ _________________________
21 City, State, Zip code City, State, Zip code
22 (g) This document prepared by: ____________________________"
23 § 30. The law revision commission shall, over a period of two years,
24 study all aspects of the implementation of title 15 of article 5 of the
25 general obligations law, as amended by chapter 644 of the laws of 2008
26 and this act. Such commission shall consult with individuals and enti-
27 ties regularly engaged in the utilization of such title, and those indi-
28 viduals and entities affected by the provisions of such title.
29 On or before September 1, 2010, the law revision commission shall
30 submit a preliminary report of its findings, conclusions and recommenda-
31 tions to the governor and the legislature regarding the statutory gifts
32 rider. In addition to providing the aforementioned preliminary report,
33 the law revision commission shall, on or before January 1, 2012, submit
34 a report of its findings, conclusions and recommendations to the gover-
35 nor and the legislature.
36 § 31. This act shall take effect on the thirtieth day after it shall
37 have become a law and shall be deemed to have been in full force and
38 effect on and after September 1, 2009. Provided, that any statutory
39 short form power of attorney and any statutory gifts rider executed
40 after August 31, 2009 shall remain valid as will any revocation of a
41 prior power of attorney that was delivered to the agent before the
42 effective date of this act.
