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Prestige Title Agency, Inc. provides Commercial and Residential Title Services Nationwide.  For more information, please contact Anthony Chiellino at (212) 651-1200 or achiellino@prestitle.com.

Summer 2009 Issue 4

PRESTIGE TITLE AGENCY, INC.

Prestige Title eNews
Summer 2009 

Greetings!
Hello everyone:
 
I hope you are enjoying your summer. As many of you already know the effective date for the use of the new form of Power of Attorney is September 1st 2009. We thought this would be a good time to follow up on our previous newsletter and revisit this matter.
 
If you have any questions or would like further information regarding any of the items in this newsletter, please contact Michael Alfieri, Esq. at (212) 651-1200 or malfieri@prestitle.com.
 
Also, if there are any topics that you would like us to include in future newsletters, please feel free to e-mail us with suggestions at info@prestitle.com.
 
Thanks again for your business.

- Anthony Chiellino, President
New York Statutory Short Form Power of Attorney as Revised
To further supplement our previous newsletter which reported on Changes for Powers of Attorney in New York, this newsletter will describe additional details and new provisions contained in New York State's new Power of Attorney New York Statutory Short Form. To refresh, Governor David Patterson signed Chapter 644 of the Laws of 2008 on January 27, 2009.  Chapter 644 of the Laws of 2008 amends the General Obligations Law, Title 15 of Article 5, creating significant changes as to form, provisions, content and execution of Power of Attorneys in New York. In addition, in terms of authorizing "Major Gifts," a second form, entitled, Power of Attorney New York Statutory Major Gifts Rider Authorization to Make Major Gifts or Other Transfers will also be required.  Please note this form will have its own additional execution requirements.

 

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.

 
Further Analysis of some of the relevant new provisions

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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In This Issue
New Provisions in NYS' new Power of Attorney Statutory Short Form
Announcements
Did you know that Prestige Title handles Commercial transactions nationwide?
 
Please contact Anthony Chiellino for further details at (212) 651-1200 or
achiellino@prestitle.com.
Quick Links
Join our Mailing List!
Further analysis (cont.)Payoffs 
  • Modification Section (Optional) - The Statutory Short Form Power Attorney provides an optional 'Modifications" section.  This section is an additional provision which includes language limiting or supplementing authority granted to  Agent(s). This section cannot be used to grant Agent(s) authority to make major gifts or changes to interests in property-to grant such authority, the statutory Major Gifts Rider must be completed.
  • Major Gifts and Other Transfers: Statutory Major Gifts Rider (Optional) -The Statutory Short Form Power of Attorney includes a section entitled Major Gifts and Other Transfers: Statutory Major Gifts Rider. This section provides that if the Agent is to make major gifts and other transfers of the Principal's property, the Principal must initial a statement in the Statutory Short Form Power of Attorney to that effect and execute a Statutory Major Gifts Rider at the same time as the Statutory Short Form Power of Attorney.
  • Power of Attorney New York Statutory Major Gifts Rider Authorization to Make Major Gifts or Other Transfers - If the Statutory Short Form Power of Attorney section entitled Major Gifts and Other Transfers: Statutory Major Gifts Rider is initialed by the Principal giving gift giving authority to the Agent, there is an Optional Rider which must accompany the Statutory Short Form Power of Attorney. This Optional Rider is entitled the "Power of Attorney" New York Statutory Major Gifts Rider Authorization to Make Major Gifts or Other Transfers. This Rider authorizes the Agent to make gifts and transfers of the Principal's property.  It must be executed simultaneously with and supplement the new Statutory Short Form Power of Attorney or be executed simultaneously with a non-statutory form of Power. This Rider 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. Furthermore, this Rider, and if executed in connection with a non-statutory form of Power, the Power itself, must be witnessed by 2 persons not named in the instrument as recipients of other gifts or other transfers, in the same manner as a Will. The Rider provides that an Agent may not gift to himself or herself an interest in the Principal's property unless the authority to do so is expressly granted.
  • No Third Party within New York  State shall refuse without Reasonable Cause to honor a Statutory Short Form  Power of Attorney properly executed and defines what Reasonable Cause shall include.
  • Powers of Attorney executed in other jurisdictions - The Statutory Short Form Power of Attorney includes a provision that a Power of Attorney executed in another state or jurisdiction in compliance with the laws of that state or jurisdiction or the law of this state is valid in this state regardless if the principal is a domiciliary of this state.
  • Revocation of Prior Powers of Attorney - The Statutory Short Form Power of Attorney provides that executing the Statutory Short Form Power of Attorney revokes any prior Powers of Attorney executed by the Principal unless otherwise provided in the Modifications section. 

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Prestige Title Agency, Inc. provides Commercial and Residential Title Services Nationwide.  For more information, please contact Anthony Chiellino at (212) 651-1200 or achiellino@prestitle.com.

  15 W. 39th St., 10th Fl. New York, NY 10018 (212) 651-1200 Fax (212) 651-1201
Member of New York State Land Title Association Member of American Land Title Association