Originally intended to take effect on March 1, 2009, the effective date of the new Statutory Short Form Power of Attorney was delayed until September 1, 2009.  Therefore, as of September 1, 2009, this new Statutory Short Form Power of Attorney must be used. Please click here for a sample draft of the proposed new Power of Attorney New York Statutory Form and Power of Attorney New York Statutory Major Gifts Rider Authorization to Make Major Gifts or Other Transfers for informational purposes only.  We will advise when these Forms become available for distribution.

Furthermore, please note that a Power of Attorney executed prior to September 1, 2009 will continue to be valid and this amendment will not affect the validity of any Power of Attorney executed prior to September 1, 2009 if such Power of Attorney was valid at the time of its execution.

Outlined below is a further analysis of some of the relevant new provisions:  

• Definition of "Person"- A "Person" may execute a Statutory Short Form Power of Attorney and be the Principal under said Power-the statute defines a "Person" to include, an individual acting for himself or herself, estate, trust, partnership, fiduciary, corporation, limited liability company, governmental entity or instrumentality or any other legal or commercial entity.  An individual executing this power must be 18 years of age or older.  Although a Non-Statutory Power of Attorney executed in New York may be used, a natural person can only execute a Non-Statutory Form Power of Attorney.
  
• Power of Attorney to be Durable - The Statutory Short Form Power of Attorney is Durable unless it expressly states that the Principal's incapacity terminates the Power. If a guardian is subsequently appointed, the agent shall account to the guardian rather than the principal.
  
• Principal and Agent Signature Required - The Statutory Short Form Power of Attorney must be signed, dated and duly acknowledged by the Principal. The signature of the Principal must be duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property.   To be valid, a Statutory Short Form Power of Attorney or a Non-Statutory Power of Attorney, must be signed and dated by an Agent acting on behalf of the Principal with the signature of the Agent duly acknowledged in the manner prescribed for the acknowledgment of a conveyance of real property.  Please note that the Principal and the Agent do not have to execute the Statutory Short Form Power of Attorney  at the same time.  However, the Statutory Short Form Power of Attorney is not effective until the Agent's signature is acknowledged. If more than 1 Agent is appointed, the Statutory Short  Form Power of Attorney is effective when the signatures of all the Agents are acknowledged.
  
• Multiple Agents Acting Jointly or Separately - The Statutory Short Form Power of Attorney provides that multiple Agents act jointly unless the Power states otherwise. In order for the Agents to act Separately, the Principal will need to initial the bracket  next to the line which states "[m]y agents may act SEPARATELY."
• Appointment of a Monitor - The Statutory Short Form Power of Attorney includes a provision whereby the Principal can appoint a "Monitor." The Monitor is appointed (Optional) to monitor the Agent's actions on behalf of the Principal. The Monitor has the authority to request/compel the Agent to provide records as to receipts, disbursements and transactions entered into by the Agent on behalf of the Principal.
• Subject Categories as to Grants of Authority - The new Statutory Short Form Power of Attorney provides a list of Subject categories of Powers/Authority to be granted by the Principal to the Agent (s) similar to the list now found in the prior Power of Attorney form. The new Statutory Short Form Power of Attorney provides that to grant Authority as to a particular subject category, the Principal will need to initial the corresponding bracket or write or type the letters for each subject selected on the blank line at "(P)." (Note: The letter "P" having replaced the letter "Q" in the prior Power of Attorney form.)
• Compensation of Agent(s) - The Statutory Short Form Power of Attorney includes a provision whereby an Agent may be re-imbursed for reasonable expenses actually incurred on behalf of the Principal. The Statutory Short Form Power Of Attorney also provides that the Principal (Optional) may allow Agent(s) to be compensated for services rendered on behalf of the Principal.
• Agent as a Fiduciary - The Statutory Short Form Power of Attorney defines and creates specific fiduciary responsibilities and/or duties for the Agent.  It provides a "prudent person standard of care" with defined fiduciary responsibilities-i.e. record-keeping requirements or an Agent may not transfer the Principal's property to herself/himself absent specific authorization in the Statutory Short Form Power of Attorney.

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