New York Power of Attorney Forms
The New York Power of Attorney Forms bestow substantial legal powers upon a person or entity (the Agent) elected by a willing individual (the Principal) so that they may perform specified actions or duties on the Principal’s behalf. As dictated by New York power of attorney (POA) laws, an Agent acting under a power of attorney “has a fiduciary relationship with the Principal”. In other words, the Agent has a legal and ethical responsibility to the Principal that they must uphold when exercising these powers.
What is a New York Power of Attorney?
A New York Power of Attorney legally represents the wishes of an individual, known as the Principal, to grant another party, known as the Agent, the necessary legal powers to act on their behalf in one or more matters. New York’s Power of Attorney laws impose a number of legal obligations on both a Principal and Agent that must be met in order for a given POA to be legally executed. The main obligations are listed below in the section, “When is it Effective?,” however, both parties should take the time to educate themselves about what is required of them by reading any and all relevant laws on the matter.
- New York Power of Attorney Laws – (Article 5, Title 15, “Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning”) and (Article 29-C, (Public Health), “Health Care Agents and Proxies”)
- State Definition of Power of Attorney (§ 5-1501,(j)) – “means a written document, other than a document referred to in section 5-1501C of this title, by which a principal with capacity designates an agent to act on his or her behalf.”
- State Definition of Health Care Proxy (Medical Power of Attorney) (§ 2980(8)) – “means a document delegating the authority to make health care decisions, executed in accordance with the requirements of this article.”
- Signing Requirements
- General / Durable Power of Attorney (§ 5-1501B) – The Principal and the Agent must both sign and date the POA, and their signatures must be duly acknowledged.
- Health Care Proxy / Medical Power of Attorney (§ 2981(2)) – The Principal (or another individual directed by them) must sign and date the Health Care Proxy in the presence of two (2) adult witnesses, who must also sign it. Additional requirements (listed below) must also be met if the Principal resides in a mental hygiene facility.
Durable (Statutory) Power of Attorney – A Durable POA allows an agent to act on the principal’s behalf to manage their finances for a duration of time that begins when the POA comes into effect and continues even in the event of the principal’s incapacity or death.
Download – Adobe PDF
General (Financial) Power of Attorney – Anyone who cannot or does not wish to carry out one or more of their financial affairs, and wishes for another party to step in for them up only up until the point they are deemed legally incapacitated, can arrange this using a General POA form.
Limited (Special) Power of Attorney – In essence, this type of POA constrains the powers an agent may exercise, and the circumstances they may exercise them, to only those stipulated in this document.
Health Care Proxy (Medical Power of Attorney) – In New York, a Medical Power of Attorney is referred to as a Health Care Proxy. There are a separate set of laws which govern these arrangements that allow an individual to elect another party to ensure their end-of-life choices are carried out.
Minor Child Power of Attorney – A minor child requires the constant care of their parents or guardians. In circumstances where parents or guardians cannot provide such care, they should enact this POA to elect a trustworthy individual to provide it in their absence.
Download – Adobe PDF
Real Estate (Property) Power of Attorney – As set out by state laws that govern real property, individuals who meet the requirements of such laws can elect an agent to arrange certain real estate affairs for them.
Revocation of Power of Attorney – A declaration made by the principal that legally expresses their decision to revoke the agent’s decision making powers over their affairs.
State Tax Filing Power of Attorney (Form POA-1) – Form POA-1 is an official form issued by the New York State Department of Taxation and Finance to appoint one or more individuals to act on their behalf in regards to designated tax matters.
Download – Adobe PDF
When is it Effective?
In order for a Power of Attorney to be effective in the state of New York, § 5-1501B states that it must be signed and dated by the Principal with capacity, with their signature “duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property.” It must also be signed and dated by the Agent/s, with their signature “duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property.”
There are also a number of other requirements which must be met. Namely, the POA form:
- Must be typed or printed using letters which are “legible or of clear type no less than twelve point in size, or, if in writing, a reasonable equivalent thereof.”
- Contain the exact wording of the “Caution to the Principal” in paragraph (a) of subdivision one of section 5-1513 of this title; and “Important Information for the Agent” in paragraph (n) of subdivision one of section 5-1513 of this title.
If the POA is for the purpose of authorizing the agent to make certain gift transactions:
(a) a statutory short form power of attorney must contain the authority (SGR) initialed by the principal and be accompanied by a valid statutory gifts rider; and
(b) a non-statutory power of attorney must be executed pursuant to the requirements of paragraph (b) of subdivision nine of section 5-1514 of this title.
The requirements for a Health Care Proxy to come into effect are an exception to all of the above. According to § 2981(2), for a Health Care Proxy to be effective in the state of New York, the Principal must sign and date it in the presence of two (2) adult witnesses (neither of whom are the Agent). The witnesses must sign the proxy and state that the Principal “appeared to execute the proxy willingly and free from duress”. If the Principal is unable to sign it, they may direct another person to do so, so long as the signature is completed in their presence as well as in the presence of the two (2) adult witnesses who must also sign the proxy.
If the Principal resides in a mental hygiene facility operated or licensed by the office of mental health, at least one (1) witness must be an individual who is not affiliated with the facility. If the mental hygiene facility is also a hospital, at least one (1) witness must be a qualified psychiatrist.
If the Principal resides in a mental hygiene facility operated or licensed by the office for people with developmental disabilities, at least one (1) witness must be an individual who is not affiliated with the facility and at least one (1) witness must be a physician or clinical psychologist who either is employed by a developmental disabilities services office named in section 13.17 of the mental hygiene law.
Alternatively, the witness must have been employed for: a) a minimum of two (2) years to render care and service in a facility operated or licensed by the office for people with developmental disabilities, or b) has been approved by the commissioner of developmental disabilities in accordance with regulations approved by them. The physician or clinical psychologist selected must possess specialized training or three (3) years experience in treating developmental disabilities.
A POA concerning “real property” is also an exception to the above. Real property is defined by NY Real Prop L § 290 as: “lands, tenements and hereditaments and chattels real, except a lease for a term not exceeding three years.” It is a requirement, as NY Real Prop L § 298 states, that a conveyance of real property situate in New York must also be acknowledged at any place within the state, before (a) a justice of the supreme court; (b) an official examiner of title; (c) an official referee; or (d) a Notary Public.