BILL TEXT:
STATE OF
________________________________________________________________________
6421--B
2007-2008 Regular Sessions
IN ASSEMBLY
March 7, 2007
___________
Introduced by M. of A. WEINSTEIN, JOHN, DINOWITZ,
DelMONTE, SEMINERIO,
the Committee on Judiciary -- reported and referred to
the Committee
on Codes -- reported from
said committee with amendments, ordered
reprinted as amended and placed on the order of second 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, providing definitions and general requirements for
valid
powers of
attorney, providing for the duties of the
agent,
requiring
the agent to sign the power of attorney form, providing procedures
for
the revocation of
the power of
attorney, and providing for civil
proceedings with respect to powers of attorney, and to repeal
sections
5-1501, 5-1502M, 5-1505 and 5-1506 of such law relating to 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 is amended to read as
follows:
3
STATUTORY SHORT FORM [POWER] AND
OTHER POWERS
4
OF ATTORNEY FOR FINANCIAL ESTATE
PLANNING
5 § 2.
Section 5-1501 of the general obligations law is
REPEALED and
6 three new sections 5-1501, 5-1501A and
5-1501B are added to
read
as
7 follows:
8 § 5-1501. Definitions. As
used in this title the following
terms
9 shall
have the following meanings:
10 1. "Agent" means a person granted authority to act as
attorney-in-fact
11 for the
principal under a power of attorney, and includes the
original
12 agent and any
co-agent or successor agent. Unless the context
indicates
13 otherwise, an "agent" designated in a
power of attorney shall
mean
EXPLANATION--Matter in italics (underscored) is new; matter in
brackets
[ ] is old law to be
omitted.
LBD01970-10-8
A.
6421--B
2
1 "attorney-in-fact" for the purposes of this title. An agent
acting under
2
a power of attorney has a fiduciary
relationship with the principal.
3 2. "Benefits
from governmental programs or civil or military
service"
4 means
any benefit, program or assistance provided under a
statute
or
5 governmental regulation, including social security, medicare and
medi-
6 caid.
7 3. "Capacity" means ability to comprehend the nature
and
consequences
8 of the act of executing and granting,
revoking, amending or modifying a
9 power
of attorney, any provision in a power of attorney, or the
authori-
10 ty of
any person to act as agent under a power of
attorney.
11 4. "Compensation" means reasonable compensation authorized
to be
paid
12 to the
agent from assets of the principal for services actually
rendered
13 by the
agent pursuant to the authority granted in a power of
attorney.
14 5.
"Financial institution" means a financial entity, including,
but
15 not
limited to: a bank, trust
company, national bank, savings
bank,
16 federal
mutual savings bank, savings and loan association,
federal
17 savings
and loan association, federal mutual savings and loan
associ-
18 ation,
credit union, federal credit
union, branch of a foreign banking
19 corporation, public pension fund, retirement system,
securities
broker,
20 securities dealer, securities firm, and insurance
company.
21 6. "Incapacitated" means to be without
capacity.
22 7.
"Internal Revenue Code" means the
23 Code of
1986, as amended. Such references, however, shall be deemed to
24 constitute
references to any corresponding provisions of any
subsequent
25 federal
tax code.
26 8. "Monitor" means a person appointed in the power of
attorney who has
27 the
authority to request, receive, and
seek to compel the agent to
28 provide a record of
all receipts, disbursements, and
transactions
29 entered
into by the agent on behalf of the
principal.
30 9. "Person"
means an individual, whether acting for himself or
31 herself, or as
a fiduciary or as an official of any legal,
governmental
32 or
commercial entity (including, but not limited to, any such
entity
33 identified
in this subdivision), corporation, business
trust, estate,
34 trust,
partnership, limited liability company, association,
joint
35 venture,
government,
governmental
subdivision, government
agency,
36 government entity, government instrumentality, public corporation, or
37 any
other legal or commercial entity.
38 10. "Power of
attorney" means a written document by which a
principal
39 with
capacity designates an agent to act on his or her
behalf.
40 11. "Principal" means an individual who is eighteen
years of age or
41 older
who executes a power of attorney.
42 12. "Record"
means information that is inscribed on a tangible
medium
43 or that
is stored in an electronic or other medium and is retrievable
in
44 perceivable form.
45 13. "Sign" means to place any memorandum, mark or
sign,
written,
46 printed, stamped, photographed, engraved or otherwise upon
an instrument
47 or
writing, or to use an electronic signature as that term is defined
in
48 subdivision
three of section three
hundred two of the state technology
49 law,
with the intent to execute the instrument,
writing or
electronic
50 record.
In accordance with the requirements of section three
hundred
51 seven
of the state technology law, a power
of attorney or
any
other
52 instrument
executed by the principal or
agent that is recordable under
53 the
real property law shall not be executed with an
electronic
signa-
54 ture.
55 14. "Statutory
major gifts rider" or "SMGR" means a document by
which
56 the
principal may supplement a statutory short form power of attorney
to
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6421--B
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1 authorize major gift transactions and other transfers, that meets the
2 requirements
of subdivision nine of section 5-1514 of this title,
and
3 that
contains the exact wording of the form set forth in subdivision
ten
4 of
section 5-1514 of this title. The use of the form set forth in
subdi-
5 vision
ten of section 5-1514 of
this title is lawful and when used, it
6 shall
be construed as a statutory major gifts rider. A statutory
major
7 gifts
rider may contain modifications or
additions as provided
in
8 section
5-1503 of this title as such modifications or additions
relate
9 to major gift transactions and other transfers. The statutory
major
10 gifts
rider must be executed in the manner provided in section 5-1514
of
11 this
title, simultaneously with the statutory short form power of
attor-
12 ney in
which the authority (SMGR) is initialed by the principal. A
stat-
13 utory
major gifts rider and the statutory short form power of
attorney
14 it
supplements must be read together as a single
instrument.
15 15. "Statutory short form power of attorney" means a power
of attorney
16 that
meets the requirements of
paragraphs (a), (b) and (c) of subdivi-
17 sion
one of section 5-1501B of this title, and that contains the
exact
18 wording
of the form set forth in
section 5-1513 of this title. The use
19 of the
form set forth in section 5-1513 of this title is lawful and
when
20 used,
it shall be construed as a statutory short form power of
attorney.
21 A
statutory short form power of attorney may be used to grant
authority
22 provided in sections 5-1502A through 5-1502N of this title.
A "statutory
23 short form
power of attorney" may contain modifications or additions
as
24 provided in section 5-1503 of this title, but in no
event may it
be
25 modified
to grant any authority provided in section 5-1514 of
this
26 title.
If the authority (SMGR) on the statutory short form is
initialed
27 by the principal, the statutory short form power of attorney
must be
28 executed in the manner provided in section 5-1501B of this
title, simul-
29 taneously with the statutory major gifts rider. A
statutory short
form
30 power
of attorney and a statutory major gifts rider which supplements
it
31 must be
read together as a single instrument.
32 16. "Third party" means a financial institution or
person.
33 § 5-1501A. Power of attorney not affected by
incapacity. 1. A
power
34 of
attorney is durable unless it expressly provides that it
is
termi-
35 nated
by the incapacity of the principal.
36 2. The subsequent incapacity of a principal shall not
revoke or termi-
37 nate the
authority of an agent who acts under a durable power of
attor-
38 ney.
All acts done during any period of the principal's incapacity by
an
39 agent
pursuant to a durable power of attorney shall have the same
effect
40 and
inure to the benefit of and bind a principal and his or her
distri-
41 butees,
devisees, legatees and personal representatives as if such
prin-
42 cipal
had capacity. If a guardian is thereafter appointed for such
prin-
43 cipal,
such agent, during the continuance of the appointment,
shall
44 account
to the guardian rather than to such
principal.
45 § 5-1501B. Creation of a valid power of attorney; when effective. 1.
46 To be
valid, a statutory short form power of attorney, or a
non-statuto-
47 ry
power of attorney, executed in this state by an individual,
must:
48 (a) Be typed or printed using letters which are
legible or of clear
49 type no
less than twelve point in size, or, if in writing, a
reasonable
50 equivalent thereof.
51 (b) Be signed
and dated by a principal with capacity, with the
signa-
52 ture of
the principal duly acknowledged in the manner prescribed for
the
53 acknowledgement of a conveyance of real
property.
54 (c) Be signed and dated by any agent acting on behalf of
the principal
55 with
the signature of
the agent duly acknowledged in
the
manner
56 prescribed
for the acknowledgement of a
conveyance of real property. A
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6421--B
4
1 power
of attorney executed pursuant
to this section is
not
invalid
2 solely
because there has been a
lapse of time between the
date of
3 acknowledgment of the
signature of the principal and the date of
4 acknowledgement
of the signature of the agent acting on behalf
of the
5 principal or because the principal became incapacitated
during any
such
6 lapse
of time.
7 (d) Contain the exact wording of
the:
8 (1) "Caution
to the Principal" in paragraph (a) of subdivision one
of
9 section
5-1513 of this title; and
10 (2) "Important Information for the Agent" in paragraph (n)
of subdivi-
11 sion
one of section 5-1513 of this title.
12 2. In addition to the requirements of subdivision one of
this section,
13 to be
valid for the purpose of authorizing the agent to make any gift
or
14 other
transfer described in section 5-1514 of this
title:
15 (a) a statutory short form power of attorney must contain
the authori-
16 ty
(SMGR) initialed by the principal and be accompanied by a valid
stat-
17 utory
major gifts rider; and
18 (b) a non-statutory power of attorney must be executed
pursuant to the
19 requirements of paragraph (b) of subdivision nine of
section 5-1514 of
20 this
title.
21 3. (a) The date on which an agent's signature
is acknowledged is the
22 effective date of the power of attorney as
to that agent;
provided,
23 however, that
if two or more agents are designated to act together,
the
24 power
of attorney takes effect when all the agents so
designated
have
25 signed
the power of attorney with their signatures
acknowledged.
26 (b) If the power of
attorney states that it takes effect upon
the
27 occurrence of a date or a contingency specified in the document,
then
28 the power of
attorney takes effect only
when the date or contingency
29 identified in the document has occurred, and the signature
of the
agent
30 acting
on behalf of the principal has been acknowledged. If the
document
31 requires that
a person or persons named or otherwise identified
therein
32 declare, in writing, that the identified contingency has
occurred,
such
33 a
declaration satisfies the requirement of this paragraph without
regard
34 to
whether the specified contingency has
occurred.
35 4.
Nothing in this title shall be construed to bar the
use of any
36 other
or different form of power of attorney desired by a person
other
37 than an individual as the term person is defined in section
5-1501 of
38 this
title.
39 § 3. Subdivisions 2 and 9 of
section 5-1502A of
the general obli-
40 gations law are amended to read as
follows:
41 2. To
sell, to exchange, to convey either with or without
covenants,
42 to quit-claim, to release, to surrender,
to mortgage, to incumber, to
43 partition or to consent to the
partitioning, [to revoke, create or
modi-
44 fy a
trust,]
to grant options concerning, to lease or to
sublet, or
45 otherwise to dispose of, any estate or
interest in land;
46 9. To execute, to
acknowledge, to seal and to deliver any deed, [revo-
47 cation,
declaration or modification of trust,] mortgage, lease, notice,
48 check or
other instrument which the agent may think useful for
the
49 accomplishment of any of the purposes
enumerated in this section;
50 § 4. Subdivisions 2 and 7 of
section 5-1502B of
the general obli-
51 gations law are amended to read as
follows:
52 2. To
sell, to exchange, to convey either with or without
covenants,
53 to release, to surrender, to
mortgage, to incumber, to
pledge,
to
54 hypothecate, to
pawn, [to revoke, create or modify a trust,] to
grant
55 options concerning, to lease or to
sublet to others, or
otherwise
to
56 dispose of any chattel or goods or any
interest in any chattel or goods;
A.
6421--B
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1 7. To execute, to acknowledge, to seal and
to deliver any conveyance,
2 [revocation, declaration or modification of
trust,]
mortgage,
lease,
3 notice, check or other instrument which the agent may
think useful for
4 the accomplishment of any of the
purposes enumerated in this section;
5 § 5.
Subdivisions 2 and 9 of section 5-1502C of the general
obli-
6 gations law are amended to read as
follows:
7 2. To sell (including short
sales), to exchange, to transfer either
8 with or without a guaranty, to release,
to surrender, to hypothecate, to
9 pledge, [to revoke, create or modify a trust,] to grant
options concern-
10 ing, to
loan, to trade in, or otherwise to dispose of any bond,
share,
11 instrument of similar character,
commodity interest or any instrument
12 with respect
thereto;
13 9. To
execute, to acknowledge, to seal and to deliver any
consent,
14 agreement, authorization, assignment, [revocation,
declaration
or
15 modification
of
trust,]
notice, waiver of
notice, check, or
other
16 instrument which the agent may think
useful for the accomplishment of
17 any of the purposes enumerated in this
section;
18 § 6.
Subdivisions 1 and 2 of section 5-1502D of the general
obli-
19 gations law are amended to read as
follows:
20 1. To continue, to modify
[and], to terminate and to make deposits
to
21 and
withdrawals
from any
deposit account, including any joint
account
22 with
the agent or totten trust for the benefit of the agent, or
other
23 banking arrangement made by or on behalf of the principal
prior to the
24 creation of the agency, provided, however,
that:
25 (a) with respect to joint accounts existing at the creation of
the
26 agency,
the authority granted hereby shall not include the power
to
27 change
the title of the account by the addition of a new joint tenant
or
28 the
deletion of an existing joint tenant, unless the authority to
make
29 such
changes is conveyed in a statutory major gifts rider to a
statutory
30 short
form power of
attorney or in a non-statutory power of
attorney
31 signed
and dated by the principal with the signature of
the
principal
32 duly
acknowledged in the manner prescribed for the acknowledgement of
a
33 conveyance of real property, and which is
executed pursuant to
the
34 requirements
of paragraph (b) of
subdivision nine of section 5-1514 of
35 this
title, and
36 (b) with respect to totten trust accounts existing at the
creation
of
37 the agency,
the authority granted hereby shall not include the power
to
38 add,
delete, or otherwise change the
designation of beneficiaries in
39 effect
for any such accounts, unless the authority to
make such addi-
40 tions,
deletions or changes is conveyed in a statutory major gifts
rider
41 to a
statutory short form power of attorney or in a non-statutory
power
42 of attorney signed and dated by the
principal with the signature of the
43 principal duly acknowledged in the manner prescribed for
the acknowledg-
44 ment of
a conveyance of real property, and which is executed pursuant
to
45 the
requirements of paragraph (b) of subdivision nine of section
5-1514
46 of this
title.
47 2. To open [either in the name of the agent alone, or] in
the name of
48 the principal [alone, or in both their names jointly or otherwise,] or
49 on
behalf of the principal a deposit account of any type with any
banker
50 or in any banking institution selected
by the agent, to make deposits
to
51 and
withdrawals from any such deposit account, to hire such safe
deposit
52 box or vault space and to make such
other contracts for the procuring of
53 other services made available by any such
banker or banking institution
54 as the agent shall think to be
desirable;
55 § 7. Subdivisions 1, 2 and 3
of section 5-1502F of the
general
obli-
56 gations law are amended to read as
follows:
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6421--B
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1 1. To
continue, to pay the premium or assessment on, to
modify, to
2 rescind, to release or to terminate any contract of
life,
accident,
3 health, disability or
liability insurance or any
combination of such
4 insurance procured by or on
behalf of the principal prior to
the
5 creation of
the agency which insures either the principal or any
other
6 person, without regard to whether the
principal is or is not a benefici-
7 ary thereunder; provided,
however, with respect to
life
insurance
8 contracts
existing at the creation of the agency, the authority
granted
9 hereby
shall not include the power to add, delete
or otherwise
change
10 the
designation of beneficiaries in effect for any such contract,
unless
11 the
authority to make such
additions, deletions or changes is conveyed
12 in a
statutory major gifts rider to a
statutory short form power of
13 attorney or in a non-statutory power of attorney signed and
dated by the
14 principal
with the signature of the
principal duly acknowledged in the
15 manner
prescribed for the acknowledgment of a conveyance of real
proper-
16 ty, and
which is executed pursuant to the requirements of paragraph (b)
17 of
subdivision nine of section 5-1514 of this
title;
18 2. To procure new, different or additional
contracts of insurance [on
19 the life
of the principal, or] protecting the principal with respect to
20 ill-health, disability, accident or
liability of any sort, to select the
21 amount, the type of
insurance contract and the mode of payment under
22 each such policy, to pay the premium or
assessment on, to
modify,
to
23 rescind, to
release or to terminate, any contract so procured
by the
24 agent [and to designate the beneficiary of any such contract of
insur-
25 ance,
provided, however, that the agent himself cannot be such
benefici-
26 ary unless the agent is spouse, child, grandchild,
parent, brother or
27 sister of
the principal];
28 3. To apply for and to
receive any available loan on the
security
of
29 the contract of insurance, whether for the payment of
a premium or for
30 the procuring of cash, to surrender and
thereupon to receive the cash
31 surrender value, to exercise
[any] an election as to beneficiary or
mode
32 of payment, to change the manner of
paying premiums, and to change
or to
33 convert the type of insurance contract, with
respect to any contract of
34 life, accident, health, disability or
liability insurance as to
which
35 the principal has, or
claims to have, any one or
more of the powers
36 described in this section [and to change the
beneficiary of any
such
37 contract of
insurance, provided, however, that the agent himself
cannot
38 be such
new beneficiary unless the agent is spouse, child,
grandchild,
39 parent,
brother or sister of the principal]; provided, however, that
the
40 authority
granted hereby shall not
include the power to add, delete or
41 otherwise change the designation of beneficiaries in effect
for any such
42 contract, unless the authority to make such additions, deletions or
43
changes is
conveyed in a
statutory major gifts rider to a
statutory
44 short
form power of attorney or in a
non-statutory power of
attorney
45 signed
and dated by the principal with the signature of
the principal
46 duly
acknowledged in the manner prescribed for the acknowledgment of
a
47 conveyance
of real property, and which is executed pursuant to
the
48 requirements of paragraph (b) of subdivision nine of
section 5-1514 of
49 this
title;
50 §
8. The closing paragraph of section 5-1502G of the
general obli-
51 gations law is amended to read as
follows:
52 All powers described in this
section [5-1502G of
the general
obli-
53 gations
law] shall be exercisable equally with respect to any
estate of
54 a decedent, absentee, infant or
incompetent, or the administration of
55 any trust or
other fund, in which the
principal is interested at the
56 giving of the power of attorney or may thereafter become interested,
A.
6421--B
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1 regardless
of whether the estate, trust or other fund is
specifically
2 identified at the giving of the power of
attorney and whether located in
3 the state of
4 § 9.
The section heading, opening paragraph and subdivision 13
of
5 section 5-1502I of the general
obligations law are amended to read as
6 follows:
7 Construction--personal [relationships] and [affairs] family mainte-
8 nance. In a statutory short form power of
attorney, the language confer-
9 ring general authority with respect
to "personal [relationships,] and
10 family
maintenance" must be construed to mean that the principal
author-
11 izes the agent:
12 13. To hire, to discharge,
and to compensate any attorney, accountant,
13 expert witness or
other assistant or
assistants when the agent shall
14 think such action to be desirable for
the proper execution by him of any
15 of the powers described in this section,
and for the keeping of needed
16 records thereof; [and]
17 § 10. Subdivision 14 of
section 5-1502I of the general obligations law
18 is
renumbered subdivision 15
and a new subdivision 14 is added to read
19 as follows:
20 14. To continue gifts that the principal customarily made
to
individ-
21 uals and charitable organizations prior to the
creation of the agency,
22 provided that no person or charitable organization may be
the
recipient
23 of gifts in any one calendar year which, in the
aggregate, exceed five
24 hundred
dollars; and
25 § 11. Section 5-1502J of the
general obligations law is
amended
to
26 read as follows:
27 § 5-1502J.
Construction--benefits from
governmental programs or
civil
28 or military service. In a statutory short
form power of attorney, the
29 language conferring general authority with respect to "benefits
from
30 governmental programs or civil or military
service," or in a
statutory
31 short
form power of attorney properly executed in
accordance with the
32 laws in
effect at the time of its
execution, the language
conferring
33 authority with
respect to "military service," must be construed to
mean
34 that the principal authorizes the
agent:
35 1. To execute vouchers in
the name of the principal for [any and
all]
36 allowances and reimbursements payable by
the
37 government
or by
[any] a state or subdivision [thereof] of a
state, to
38 the principal, including [by way of illustration and not of
restriction,
39 all] but not
limited to allowances and reimbursements for
transportation
40 of the principal and of [his] the
principal's spouse, children and other
41 dependents, and for shipment of
household effects, to
receive,
to
42 indorse and to collect the proceeds of
any check payable to the order of
43 the principal drawn on the treasurer or
other fiscal officer or deposi-
44 tary of the
45 subdivision
thereof;
46 2. To
take possession and to order the removal and
shipment[,]
of
47 [any] property of the principal from
[any] a
post, warehouse, depot,
48 dock or
other place of storage or
safekeeping, either governmental or
49 private, [to] and execute and [to] deliver [any]
a release, voucher,
50 receipt, bill of lading, shipping ticket, certificate
or other instru-
51 ment [which the agent shall think to be desirable or
necessary] for such
52 purpose;
53 3. To enroll in, apply for, select, reject, change, amend,
or
discon-
54 tinue a
benefit or program on the principal's
behalf;
55 4. To prepare, [to] file and [to] prosecute [the] a claim of the prin-
56 cipal to any benefit or assistance,
financial or otherwise, to which the
A.
6421--B
8
1 principal is, or claims to be, entitled,
under [the provisions of any]
a
2 statute or
governmental regulation [existing at the
creation of the
3 agency or
thereafter enacted by the
4 any
subdivision thereof, or by any foreign government,
which],
including
5 any
benefit or assistance which arises from or is based upon
military
6 service performed prior to or after the
creation of the agency by
the
7 principal or by any person related by blood or by
marriage to the prin-
8 cipal, to execute any receipt or other
instrument which the agent
shall
9 think to
be desirable or
necessary for the enforcement or for
the
10 collection of such
claim;
11 [4.] 5. To receive the financial proceeds of
any claim of
the
type
12 described in this section, [to] conserve, [to] invest, [to] disburse or
13 [to
utilize] use
anything so received for [purposes
enumerated in
this
14 section,
and to reimburse the agent
for any expenditures properly made
15 by him in
the execution of the powers conferred on him by the
statutory
16 short
form power of attorney] a lawful
purpose;
17 [5.] 6. To prosecute, [to] defend, [to] submit to [arbitration] alter-
18 native dispute
resolution, [to]
settle, and [to] propose or
[to] accept
19 a compromise with respect to[,] any [claim
existing in favor of, or
20 against, the
principal based on or involving any benefits from
military
21 service
or to intervene in any action or
proceeding relating
thereto]
22 benefit
or assistance described in subdivision four of this
section;
23 7. To communicate with any representative or employee of a
government,
24 governmental
subdivision, agency, or instrumentality on behalf of
the
25 principal;
26 [6.] 8. To hire, [to] discharge, and [to]
compensate any attorney,
27 accountant, expert witness, or other assistant or assistants when
the
28 agent shall think such action to be
desirable for the proper execution
29 [by
him] of any of the powers described in this section;
and
30 [7.]
9. In general, and in addition to all the
specific acts in this
31 section enumerated, to do any other act
or acts, which the principal can
32 do through an agent, and which the agent
shall think to be desirable
or
33 necessary, to
assure to the principal, and to the dependents of
the
34 principal, the maximum possible benefit
from [the] governmental programs
35 or from
civil or military
service performed prior to
or after the
36 creation of
the agency by
the principal or by any person related by
37 blood or marriage to the
principal.
38 All powers described in this
section [5-1502J of
the general
obli-
39 gations
law] shall be
exercisable equally with respect to any benefits
40 from governmental programs or civil or military
service existing at
the
41 giving of
the power of
attorney or thereafter accruing, and whether
42 accruing in the state of
43 § 12. Section 5-1502K of the
general obligations law is
amended
to
44 read as follows:
45 § 5-1502K.
Construction--health care billing and payment
matters;
46 records, reports and statements. In
a statutory short form power of
47 attorney, the language conferring general authority with respect
to
48 ["records, reports and statements,"]
"health care billing and
payment
49 matters;
records, reports and statements," or in a statutory short
form
50 power
of attorney properly executed
in accordance with the laws in
51 effect at the time of its execution, the language
conferring authority
52 with
respect to "records, reports and statements," must be
construed to
53 mean that the principal authorizes the
agent:
54 1. To access records relating to the provision
of health care and to
55 make
decisions relating to the past, present or future payment for the
56 provision
of health care consented to
by or on behalf of the principal
A.
6421--B
9
1 or the
principal's health care agent authorized under state law. In
so
2 doing the agent is
acting as the principal's personal
representative
3 pursuant to sections 1171 through 1179 of the Social Security Act, as
4 added by sections 262 and 264 of Public Law 104-191, and
applicable
5 regulations. This authority shall not include authorization for the
6 agent
to make other medical or health care decisions for the
principal;
7 2.
To keep records of
all cash received and disbursed for or
on
8 account of the principal, of all credits
and debits to the account of
9 the principal, and of all transactions affecting in any
way the assets
10 and liabilities of the
principal;
11 [2.] 3. To prepare, to execute and to file all
tax, social security,
12 unemployment insurance and information returns,
required by the laws of
13 the United States, of any state or of
any subdivision thereof or of
any
14 foreign government, to prepare, to execute and
to file all other papers
15 and instruments which the agent shall
think to be desirable or necessary
16 for the safeguarding of the principal
against excess or illegal taxation
17 or against penalties imposed for claimed
violation of any law or other
18 governmental
regulation;
19 [3.]
4. To
prepare, to execute and to file any record, report [or],
20 statement, [which the agent shall think to be desirable or necessary
for
21 the
safeguarding or maintenance of] or other document
to safeguard or
22 promote the principal's interest, [with respect to price, rent, wage
or
23 rationing
control, or other governmental activity] under a statute or
24 governmental
regulation;
25 [4.]
5. To
hire, to discharge, and to
compensate any attorney,
26 accountant, or other assistant or
assistants when the agent shall
think
27 such action to
be desirable for the proper execution by him of any
of
28 the powers described in this section;
and
29 [5.] 6. In general, and in addition to all the
specific acts in this
30 section enumerated, to do any other act
or acts, which the principal can
31 do
through an agent, in
connection with the preparation, execution,
32 filing, storage or other utilization of
any records, reports or state-
33 ments of or concerning the principal's
affairs.
34 All powers described in
this section [5-1502K of the general
obli-
35 gations
law] shall be exercisable equally with respect to
any health
36 care billing
and payment matters, and records, reports or statements
of
37 or concerning the affairs of the
principal existing at the giving of the
38 power of attorney or thereafter
arising, and whether arising in
the
39 state of
40 § 13. Subdivisions 2
and 4 of section 5-1502L of the general obli-
41 gations law, subdivision 2 as amended by
chapter 500 of the laws of 1996
42 and subdivision 4 as added by chapter
499 of the laws of
1996,
are
43 amended to read as
follows:
44 2. To
make investment directions, to
select and change payment
45 options, [to designate a beneficiary or beneficiaries, provided,
howev-
46 er, that
the agent may not designate herself or himself as a
beneficiary
47 unless the agent is
a spouse, child, grandchild,
parent, brother or
48 sister of
the principal or unless the short form power of
attorney
49 permits the
agent to designate himself or herself,] and to exercise
any
50 other election for the principal with
regard to any retirement benefit
51 or
plan in which the principal has an interest, provided, however,
that
52 the
authority granted hereby shall not include
the authority to
add,
53 delete,
or otherwise change the
designation of beneficiaries in effect
54 for any
such retirement benefit or plan, unless the authority to
make
55 such
additions, deletions or changes is conveyed in a statutory
major
56 gifts
rider to a statutory short form power of attorney or in a
non-sta-
A.
6421--B
10
1 tutory
power of attorney signed and dated
by the principal with the
2 signature
of the principal duly acknowledged in the
manner prescribed
3 for the
acknowledgment of a conveyance of real property, and which is
4 executed
pursuant to the requirements of paragraph (b) of
subdivision
5 nine of
section 5-1514 of this title;
6 4. To prepare, execute and
deliver any application, agreement,
[trust
7 agreement,] authorization, check or other instrument or document
which
8 may be required under the terms of any
retirement benefit or
plan
in
9 which the principal has an interest or by the
administrator thereof, or
10 which the agent deems useful for the accomplishment of
any of the
11 purposes enumerated in this
section;
12 § 14. Section 5-1502M of the
general obligations law is REPEALED.
13 § 15. Section 5-1502N of the general
obligations law is redesignated
14 section 5-1502M and the closing
paragraph, as added by chapter 499 of
15 the laws of 1996, is amended to read as
follows:
16 The powers explicitly authorized in the provisions of this
section
17 [5-1502N
of the general obligations
law]
shall not be
construed
to
18 diminish any like powers authorized in any other
section of this
title
19 [15 of
article 5 of the general
obligations
law],
such as, but not
20 limited to, those authorized in
subdivision 9 of section 5-1502I of this
21 title. Accordingly, such powers as are authorized in any
other section
22 of this title [15 of article 5 of the general obligations
law] shall
be
23 construed as if the provisions of this
section do not exist.
24 § 16. Section 5-1502O of the general obligations law,
as amended by
25 chapter 499 of the laws of 1996, is
amended to read as follows:
26 § [5-1502O] 5-1502N. Construction--all other matters. In a statutory
27 short form power of attorney, the
language conferring general
authority
28 with respect to "all other matters" must be construed
to mean that the
29 principal authorizes the agent to act as
an alter ego of the principal
30 with respect to any and all possible matters and
affairs which are not
31 enumerated in sections 5-1502A to
[5-1502N] 5-1502M, inclusive, of this
32 [chapter]
title, and which the principal can do through an agent[,
33 except];
provided,
however,
that such authority shall not include
34 authorization for the agent to designate a third party to act as
agent
35 for the
principal or to make medical or other health care decisions for
36 the principal, except as
otherwise provided in
subdivision one of
37 section
5-1502K of this title.
38 § 17. Section 5-1503 of the
general obligations law, as
amended
by
39 chapter 499 of the laws of 1996, is
amended to read as follows:
40 § 5-1503. Modifications of the statutory short form power of
attorney
41 and of
the statutory major gifts rider. A power of attorney which
satis-
42 fies the requirements of [subdivision two
of section 5-1501 of
this
43 chapter or of subdivision six of section 5-1506 of
this chapter] para-
44 graphs
(a), (b) and (c) of subdivision one of
section 5-1501B and
45 section
5-1513 of this title is not
prevented from being a "statutory
46 short form power of attorney",
[or a
"statutory short form power of
47 attorney
effective at a future time",]
and a document which
satisfies
48 the
requirements of section 5-1514 of this title is not prevented
from
49 being a
"statutory major gifts rider" as either of these [phrases] terms
50 is used in the sections of this title,
by the fact that it also contains
51 additional language at the section labeled "modifications"
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 in
54 one or more of the constructional
sections of this title with respect to
55 a
subdivision of the statutory short form power of attorney[, or of the
56 statutory
short form power of attorney effective at a future time,] or
A.
6421--B
11
1 of the statutory major gifts
rider, affirmatively chosen by the princi-
2 pal; or
3 2. Supplements one or more of the powers
enumerated in one or more of
4 the constructional sections in this
title with respect to a
subdivision
5 of
the statutory short form power of attorney[, or of the statutory
6 short
form power of attorney effective at a
future
time,]
or
of
the
7 statutory
major gifts
rider, affirmatively chosen by the principal,
by
8 specifically listing additional powers
of the agent; or
9 3. Makes some additional
provision which is not inconsistent with
the
10 other provisions of
the statutory short form power of attorney [or of
11 the
statutory short form power of attorney effective at a future
time]
12 or of
the statutory major gifts rider.
13 § 18. Section 5-1504 of the general obligations law, as
amended by
14 chapter 499 of the laws of 1996, is
amended to read as follows:
15 § 5-1504. Acceptance of
statutory short form power of
attorney.
1.
16 [As used
in this section, the term "financial institution" means each
of
17 the following: a
bank, trust company, national bank, savings
bank,
18 federal
mutual savings bank, savings and loan association,
federal
19 savings and loan association, federal mutual savings and
loan associ-
20 ation,
credit union, federal credit union, branch of a foreign
banking
21 corporation, public pension fund, retirement
system.
22 2.] No [financial institution] third party located in this state
shall
23 refuse, without
reasonable cause, to honor a statutory short form
power
24 of attorney properly executed in accordance with section [5-1501
or
25 5-1506] 5-1501B of this title, including a statutory short form power
of
26 attorney
which is supplemented by a statutory major gifts
rider, or a
27 statutory short form power of attorney properly
executed in
accordance
28 with
the laws in effect at the time of its
execution.
29 [3. The failure of a financial institution]
(a) Reasonable cause
under
30 this
subdivision shall include, but not be limited
to:
31 (1) the
refusal by the agent to provide an original power of
attorney
32 or a
copy certified by an attorney pursuant to rule twenty-one
hundred
33 five of
the civil practice law and rules, or by a court or other
govern-
34 ment
entity;
35 (2) the third party's good faith referral of the principal and
the
36 agent
to the local adult protective services
unit;
37 (3) actual knowledge of a report having been made by any
person to the
38 local
adult protective services unit alleging physical or
financial
39 abuse,
neglect, exploitation or
abandonment of the principal
by the
40 agent;
41 (4) actual knowledge of the principal's death or a
reasonable
basis
42 for
believing the principal has died;
43 (5)
actual knowledge of the
incapacity of the principal or a reason-
44 able
basis for believing that the principal is incapacitated where the
45 power
of attorney tendered is a nondurable power of
attorney;
46 (6)
actual knowledge or
a reasonable basis for
believing that the
47 principal was incapacitated at the time the power of
attorney
was
48 executed;
49 (7)
actual knowledge or
a reasonable basis for
believing that the
50 power
of attorney was procured through fraud, duress or undue
influence;
51 (8) actual notice, pursuant to subdivision three of
this section, of
52 the
termination or revocation of the power of attorney;
or
53 (9) the refusal by
a title insurance company to underwrite
title
54 insurance for a transfer of real property made pursuant to
a major gifts
55 rider
or non-statutory power of attorney that does not contain
express
56 instructions or purposes of the
principal.
A.
6421--B
12
1 (b) It shall be
deemed unreasonable for a third party to refuse
to
2 honor a
statutory short form power of attorney,
including a
statutory
3 short form
power of attorney which is supplemented by a statutory
major
4 gifts
rider, or a statutory short form power of
attorney
properly
5 executed
in accordance with the laws in
effect at the time of its
6 execution, if the only reason for the refusal is any of the
following:
7 (1) the power of attorney is not on a form prescribed by
the
third
8 party
to whom the power of attorney is presented.
9 (2) there has been a lapse of time since the execution of
the power of
10 attorney.
11 (3) on the face of the statutory form power of
attorney, there is a
12 lapse
of time between the date of acknowledgment of the signature of
the
13 principal and the date of acknowledgment of the signature
of any agent.
14 2. Except as provided in subdivision three of this
section, it
shall
15 be deemed unlawful for a third party to
unreasonably refuse to honor a
16 properly executed statutory short form power of
attorney [shall
be
17 deemed
unlawful], including a
statutory short form power of
attorney
18 which
is supplemented by a statutory major gifts rider, or a
statutory
19 short
form power of attorney properly executed in
accordance with the
20 laws in
effect at the time of its execution.
A special proceeding as
21 authorized by section 5-1510 of this title shall be the
exclusive remedy
22 for a
violation of this section.
23 [4. No financial institution] 3. In the absence of actual
knowledge
24 that
the principal lacked capacity to execute
a statutory short
form
25 power
of attorney or that the statutory short form power of attorney
was
26 procured
through fraud, duress or
undue influence, no third
party
27 receiving and retaining a properly executed statutory short form power
28 of
attorney [properly
executed in accordance with section 5-1501
or
29 5-1506 of
this title], including a
statutory short form power of
attor-
30 ney
which is supplemented by a statutory major gifts rider or a
statuto-
31 ry
short form power of attorney properly executed in accordance with
the
32 laws in effect at the time of its
execution, or a complete photostatic
33 copy of the properly executed original
thereof nor any officer, agent,
34 attorney-in-fact or employee of such
[financial institution]
third
party
35 shall incur any liability by reason of
acting upon the authority thereof
36 unless the [financial
institution]
third party shall have
[actually]
37 received[, at the office where the account is located, written] actual
38 notice of the revocation or termination
of such power of attorney.
39 [5.]
If
a principal maintains an account at a financial
institution,
40 the
financial institution is deemed to have actual notice after it
has
41 had a reasonable opportunity to act on a
written notice of the revoca-
42 tion or
termination following its receipt of
the same at
its
office
43 where
such account is located.
44 4.
If the application of the provisions of subdivision one or two [or
45 three] of this section shall be held invalid
to any [financial
institu-
46 tion]
third party the application of
such provisions to any [other
47 financial
institution] third
party other than those to which it is held
48 invalid, shall not be affected
thereby.
49 5. When the
power of attorney is presented to a third party, it
shall
50 not be
deemed unreasonable for a third party to
require the agent to
51 execute
an acknowledged affidavit
pursuant to this subdivision stating
52 that
the power of attorney is in full force and effect. Such an
affida-
53 vit is conclusive proof to
the third party relying on
the power of
54 attorney that the power of attorney is valid and effective,
and has
not
55 been
terminated or revoked, except as to any third party who had
actual
A.
6421--B
13
1 notice
that the power of attorney had terminated or been revoked
prior
2 to the
execution of the affidavit. Such affidavit shall state
that:
3 (a) the agent does not have, at the time of the
transaction, actual
4 notice
of the termination or revocation of the
power of attorney, or
5 notice of any facts indicating that the power of attorney has
been
6 terminated or revoked;
7 (b) the agent does not have, at the time of the transaction,
actual
8 notice
that the power of
attorney has been modified in any way
that
9 would
affect the ability of the agent to
authorize or engage in
the
10 transaction,
or notice of any facts indicating that the power of
attor-
11 ney has
been so modified; and
12 (c) if the agent was named as a successor agent, the prior
agent is no
13 longer
able or willing to serve.
14 6. Nothing in this section shall require the acceptance of
a form that
15 is not
a statutory short form power of attorney.
16 § 19. Sections 5-1505 and
5-1506 of the general
obligations law are
17 REPEALED and ten new sections 5-1505, 5-1506, 5-1507,
5-1508, 5-1509,
18 5-1510, 5-1511, 5-1512, 5-1513 and
5-1514 are added to read as follows:
19 § 5-1505. Standard of care; fiduciary duty; compelling disclosure of
20 record.
1. Standard of care. In
dealing with property of the princi-
21 pal, an
agent shall observe the standard of care that would be
observed
22 by a
prudent person dealing with property of
another.
23 2. Fiduciary
duty. (a) An agent acting under a
power of attorney has
24 a
fiduciary duty to the principal. The fiduciary duty includes each of
25 the
following obligations:
26 (1) To act
according to any instructions from the principal or,
where
27 there
are no instructions, in the best interest of the principal, and
to
28 avoid
conflicts of interest.
29 (2) To keep the principal's property separate and distinct from any
30 other
property owned or
controlled by the agent, except for
property
31 that is
jointly owned by the principal and agent
at the time of
the
32 execution
of the power of attorney, and property that
becomes jointly
33 owned
after the execution of the power of attorney as the result of the
34 agent's
acquisition of an interest in the principal's property by
reason
35 of the agent's exercise of authority
granted in a statutory major gifts
36 rider
or in a non-statutory power of attorney signed and dated by
the
37 principal with the signature of the principal duly
acknowledged in the
38 manner
prescribed for the acknowledgment of a conveyance of real
proper-
39 ty, and
which is executed pursuant to the requirements of paragraph (b)
40 of subdivision nine of section 5-1514 of this title.
The agent may not
41 transfer the principal's property to himself or herself
without specific
42 authorization.
43 (3) To keep a record of all receipts, disbursements,
and
transactions
44 entered
into by the agent on behalf of the principal and
to make such
45 record
and power of attorney available at the
request of the principal.
46 The
agent shall make such record and a copy of
the power of
attorney
47 available within fifteen days of a written request by any
of the follow-
48 ing:
49 (i) a monitor;
50 (ii) a co-agent or successor agent acting under the power
of attorney;
51 (iii) a government entity, or official thereof,
investigating a report
52 that the principal may be in need of protective or other
services, or
53 investigating a report of abuse or
neglect;
54 (iv) a court evaluator appointed pursuant to
section 81.09 of
the
55 mental
hygiene law;
A.
6421--B 14
1 (v) a guardian ad
litem appointed pursuant to section
seventeen
2 hundred
fifty-four of the surrogate's court procedure
act;
3 (vi) the guardian or conservator of the estate of the
principal, if
4 such
record has not already been provided
to the court evaluator or
5 guardian ad litem; or
6 (vii) the
personal representative of the estate of a deceased
princi-
7 pal if
such record has not already been
provided to the guardian or
8 conservator of the estate of the
principal.
9 The failure of the agent to make the record available
pursuant to this
10 paragraph
may result in a special proceeding under
subdivision one of
11 section
5-1510 of this title. Such proceeding
shall be the
exclusive
12 remedy
to compel the agent to provide such record.
13 (b) The agent may be subject to liability for conduct or
omissions
14 which
violate the fiduciary duty.
15 (c) The agent is not liable to third parties for any act
pursuant to a
16 power
of attorney if the act was authorized at the time and the act did
17 not
violate subdivision one or two of this
section.
18 3.
Resignation. (a) An agent who has signed the power of attorney
may
19 resign
by giving written notice to the principal and the agent's
co-a-
20 gent,
successor agent or
the monitor, if one has been
named, or the
21 principal's guardian if one has been appointed. If no
co-agent,
succes-
22 sor
agent, monitor or guardian
is known to the agent and the principal
23 is
incapacitated or the agent has notice of
any facts indicating the
24 principal's
incapacity, the agent may
give written notice to a govern-
25 ment
entity having authority to protect the welfare of the principal,
or
26 may
petition the court to approve the
resignation.
27 (b) The principal may provide for alternative means for an
agent's
28 resignation in the power of
attorney.
29 § 5-1506. Compensation. 1. An
agent is not entitled to
receive
30 compensation from the
assets of the principal for
responsibilities
31 performed
under a power of attorney unless the principal
specifically
32 provides for compensation in the power of
attorney.
33 2. An agent shall be entitled to receive reimbursement from
the assets
34 of the
principal for reasonable expenses actually incurred in
connection
35 with
the performance of the agent's
responsibilities.
36 § 5-1507. Signature of agent. 1. (a) In any transaction where the
37 agent
is acting pursuant to a power of attorney and where the
hand-writ-
38 ten
signature of the agent or principal is required, the
agent shall
39 disclose the principal and agent relationship
by:
40 (1) signing "(name of agent) as agent for (name of
principal)"; or
41 (2) signing "(name of principal) by (name of agent), as
agent"; or
42 (3) any similar written disclosure of
the principal and
agent
43 relationship.
44 (b) A third party shall incur no liability for
accepting a signature
45 that
does not meet the requirements of this
subdivision.
46 2. When the agent engages in a transaction on behalf of the
principal,
47 the
agent is attesting that:
48 (a) the agent has actual authority to engage in the
transaction;
49 (b) the agent does not have, at the time of the transaction,
actual
50 notice of
the termination or revocation of the power of attorney,
or
51 notice
of any facts indicating that
the power of
attorney has
been
52 terminated or revoked;
53 (c) if the
power of attorney is one which terminates upon the
princi-
54 pal's
incapacity, the agent does not have, at the time of
the
trans-
55 action
actual notice of
the principal's incapacity, or notice of
any
56 facts
indicating the principal's incapacity.
A.
6421--B
15
1 (d) the agent does not have, at the time of the transaction,
actual
2 notice
that the power of
attorney has been modified in any way
that
3 would
affect the ability of the agent to engage in the transaction, or
4 notice of any facts indicating that the power of
attorney has been so
5 modified.
6 3. The attestation of the agent pursuant to subdivision two
of this
7 section
is not effective as to any third party
who had actual
notice
8 that the power of attorney had terminated or been
revoked prior to the
9 transaction.
10 § 5-1508. Co-agents and successor agents. 1. A principal may
desig-
11 nate two or
more persons to act as
co-agents. Unless the
principal
12 provides otherwise in the power of attorney, the co-agents must act
13 jointly.
However, if prompt action is
required to accomplish a purpose
14 of the
power of attorney and to avoid irreparable injury to the
princi-
15 pal's
interest and a co-agent is unavailable because of absence,
illness
16 or other temporary incapacity, the other co-agent
or co-agents may act
17 for the
principal. Unless the principal
provides otherwise in the power
18 of
attorney, if a vacancy occurs because of the death, resignation or
19 incapacity of
a co-agent, the remaining agent or agents may act for
the
20 principal.
21 2. A principal may designate one or more successor agents
to serve
if
22 every
initial or predecessor agent resigns, dies, becomes
incapacitated,
23 is not qualified to
serve or declines to serve. Unless the
principal
24 provides otherwise in the power of attorney, a successor
agent has the
25 same
authority as that granted to an initial
agent.
26 3. A co-agent or a successor agent acting under a
power of attorney
27 shall
have the authority to request, receive and seek to compel a
co-a-
28 gent or
predecessor agent to provide a record of all receipts,
disburse-
29 ments and
transactions entered into by the agent on behalf of the
prin-
30 cipal.
31 § 5-1509. Appointment of monitor. A principal may appoint a
monitor
32 or monitors in
the power of attorney who
shall have the authority to
33 request, receive and compel the agent to
provide a record of
all
<