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A Step-By-Step Guide To Creating A Power Of Attorney In New York

Apr 18

This page addresses changes to New York's statutory short form power of attorney that take effect on or after June 13, 2021. A POA that was signed before this date is still valid.


What is the definition of a power of attorney?

A power of attorney, often known as a POA, is a legal instrument that allows you to delegate authority to another person to make vital medical or financial decisions on your behalf. This individual is referred to as your agent, and you, as the POA's creator, are referred to as the principal.

You don't need to engage a power of attorney lawyer to establish a power of attorney in New York (or any other state). You may save time and money by doing it yourself. Any POA you write is just as lawful as one created by a lawyer as long as you fulfill New York's rules.

The state of New York modified its rules on June 13, 2021, to make the formation of a statutory short form POA (also known as a financial POA) more logical. It's also simpler than ever to construct a New York POA that represents your desires with the use of free power of attorney forms.


Powers of attorney come in a variety of shapes and sizes

There are numerous forms of POAs recognized in New York. Each one has a special function and provides your agent unique abilities. You'll want to choose one that's a good match for your needs. Here are several possibilities:


1. Power of attorney for a long period of time

When a power of attorney is "durable," it indicates that your agent's authority remains even if you are incapacitated, such as in a coma. Because you're preparing for a future when you won't be able to convey crucial choices on your own, durable POAs are utilized in estate planning. If your power of attorney isn't durable, your agent's ability to act will be limited if you become disabled.

Unless you expressly specify otherwise in your POA paperwork, all POAs in the state of New York are durable by default. Even so, a statement in your POA stating that you want your POA to be durable is an excellent idea. "This Power of Attorney shall not be impaired by my future incapacity unless I have said otherwise," according to New York's statutory short form POA.

If your power of attorney isn't long-lasting, your agent's authority to act will expire if you become disabled.


2. Financial power of attorney/statutory power of attorney

In New York, a statutory POA may be used to grant your agent control over your financial and commercial affairs. You may, for example, delegate authority to your agent to pay your bills, submit your taxes, sell your real estate property, and so on. A financial power of attorney is another name for this sort of POA.

A statutory power of attorney does not provide your agent the authority to make medical decisions on your behalf. In New York, a health care proxy protects those decision-making rights. Your agent, on the other hand, has financial control over the cost and payment of your medical treatment.

New York citizens may utilize the statutory short form power of attorney to create a statutory power of attorney. This "short form" is a free template produced by the state of New York for people to utilize. Using the abbreviated form POA is typically a good idea since it's simpler for banks and other organizations to identify.

The state of New York updated the statutory short form POA on June 13, 2021, to make it simpler to use. The following are some of the most significant changes:

There is no longer any demand for precise language. Previously, New Yorkers had to utilize the precise wording allowed in the legislation to construct a statutory short form POA. If they hadn't, the POA may have been turned down. A mistake or a change in font size might have been enough to cause the document to be rejected. That regulation has now been loosened. A statutory POA should adhere to the statute's terms as precisely as possible, but it may stray somewhat and still be legitimate.
Your agent's ability to make judgments concerning your healthcare expenditures is well defined. It wasn't clear how much control you may give your agent over your healthcare-related financial choices before June 2021. When it comes to your healthcare bills, your agent is now deemed a personal representative under the new legislation. They may, for example, review your medical billing records for discrepancies.

Your agent may now make annual donations of up to $5,000 to help your family and personal needs. Previously, under the statutory short form POA, your agent could only donate up to $500 each year. If you have family members who depend on you for financial assistance, $500 is unlikely to suffice for a year's worth of expenses. You would need to fill out a Statutory Gifts Rider to enable your agent to gift more under the previous statute. This was an additional paperwork to go along with your POA. Without filling out a separate form, your agent may now provide up to $5,000 of your money each year to assist your spouse, children, parents, and other family members. If your family need more than $5,000 per year, you may order your agent to provide it by including those instructions in your POA.

3. Health-care surrogate

If you're unable to make healthcare choices for yourself, you may grant someone else, known as your "health care agent," the right to do so on your behalf. These choices might include things like therapy, medicine, surgery, end-of-life care, and more. A medical power of attorney or health care power of attorney is another name for a health care proxy.

Your health care proxy must be signed by you and two witnesses in New York (your selected agent cannot be one of the witnesses). Unlike other forms of POAs, your health care proxy does not need to be notarized.

The New York State Department of Health's website has a link to the state's health care proxy form. You may also construct a health care proxy fast and easily using free internet tools.


Power of Attorney Requirements in New York

To create a POA in New York, you must first:

  • You must be at least 18 years old to participate.
  • Have mental "capacity," which means you can understand the nature and implications of signing a POA.
  • Your POA should be typed or written in a readable typeface. If you're typing, stick to a font size of 12 points or larger.
  • Have your POA notarized and signed in the presence of two witnesses. Your notary may also act as one of your witnesses in New York. (Keep in mind that a health care proxy just requires witness signatures, not a notary.)
  • Sign and date your POA with your designated agency. Have their signature notarized if you're establishing a statutory power of attorney in New York. Your agent does not have to sign your POA at the same time as you, but they must before they may function as your agent.

A beneficiary of your estate should not witness your POA to prevent a conflict of interest. (This includes your spouse, children, and anybody else you've specified in your will.) Your agent can't be a witness, but they must still sign your POA to acknowledge their power.

It's a good idea to provide a copy of your power of attorney to your agent and explain your expectations after you've completed it. They'll need to show the POA to the proper authorities (such as your bank or hospital) to confirm they have the ability to make decisions on your behalf.


In New York, who may act as your agent?

Your POA agent may be someone who is at least 18 years old and has mental capacity, according to New York law. Your agent does not have to be a lawyer; in fact, most individuals do not opt to hire a lawyer as their representative. You may choose a family member, close friend, business partner, or anybody else you trust to look out for your best interests.

Your agent is obligated by law to:

  • In your best interests, follow the directions you've provided in your POA Act.
  • Keep your property distinct from theirs, and if they sign on your behalf, make it clear that they are acting as your agent.
  • Save track of any payments and transactions they make on your behalf and keep receipts.

Do you still need a will if you have a power of attorney?

Yes, estate planning experts believe that you should have a will and a power of attorney. These papers are used for a variety of reasons. Your final will and testament specifies how you want your assets to be allocated when you pass away. In the event that you become sick or wounded, your POA will cover essential choices that must be made during your lifetime.