New York Statutory (Effective 9/12/10) Short Form Power Of Attorney And Gifts Rider (12 Pages)

Since the Power of Attorney (“POA”) instrument is widely used in many practice areas, it is important to keep abreast of changes to the Revised Statutory Short Form Power of Attorney and the Statutory Gifts Rider attached thereto. The newest revisions became effective on September 12, 2010.  
If your client executed the POA promulgated last September 9, 2009 or a POA prior to that date, the instruments remain valid.  However, as of September 12, 2010 only the newly revised form may be used. This article is intended to briefly highlight the new revisions. More details can be found in amended Section 5, Title 15 of the New York General Obligations Law.
1) Execution of new Power:  The Power of Attorney must be signed and acknowledged by both the Principal granting the Power and the Agent (formerly known as the Attorney in Fact).  The  instrument  will not be acceptable for recording without all signatures. 
2) Individual Capacity of Principal and Designated Agents:  Both the Principal and Agents must be individuals.   Parties cannot be acting in a representative or fiduciary capacity. Thus, government officials, financial managers or other fiduciaries are not allowable qualified parties. Nor are entities such as corporations, financial institutions, business entities, commercial entities, trusts, estates, etc. allowed as qualified parties. 
3)  Authority of Agents to act on behalf of Principal:  If the Principal has signed the instrument and becomes incapacitated before designated agents have signed, the document is nevertheless presumed valid.  If multiple agents were designated and one or more has not yet executed the instrument, they may nevertheless act on behalf of the Principal.
4) Revocation of prior POAs:   A newly executed POA does not automatically terminate a prior POA as occurred in the past. The new form includes a provision revoking one or more POAs previously executed by the Principal.  Prior POAs must be explicitly revoked in writing.  If the prior instrument was recorded, the revocation,  to be effective, must also be recorded.
5) Notice of Revocation or termination:   An agent acting by authority of a prior POA must receive actual notice of the signed and dated revocation by personal delivery or by mail, electronic transmission or fax.  Termination of the agent’s authority is not effective until the agent has actual notice of revocation.  An agent is deemed to have received a revocation when it has been directly delivered to him within “a reasonable time” after it has been sent by mail. Should a prior agent, without actual knowledge of revocation, perform a duty believing prior authority remains in effect, he will be held harmless from any claims that may arise because of his actions.
6) Gift Giving:   The September 2009 gifts Rider, called the Statutory Major Gifts Rider has been retitled and is now simply the Statutory Gifts Rider (SGR).  If the POA is intended to convey gifts exceeding $500 in any calendar year, the optional Statutory Gifts Rider (SGR) must be initialed, executed and attached to the POA so that they can be read together as a single instrument.
7) Matrimonial situations:  Divorce automatically terminates a POA unless otherwise stated in the instrument. Caution: This does not absolve divorcing couples from re-executing a Deed which heretofore reflected their ownership of real property as Tenants by the Entirety or joint tenants.
8) Real Estate transaction situations:  Condominium Associations my still require a new unit owner to execute the condo’s own form.  It does not appear that lending banks, notoriously known to insist on using their own forms, have the authority to reject this POA executed pursuant to the General Obligations Law. The Statutory Gifts Rider is not necessary for real estate transactions involving consideration.
Note, the author,  Claire Meadow  has a private practice which concentrates on real estate transactions as well as wills, trusts and estates.  Additionally, she works with a title agency and, in that capacity, would be happy to answer real estate transaction questions and have the agency provide a copy of the POA and SGR in connection with title insurance applications. She may be reached at [email protected]  or by calling 914 834-6472.
Author:
CLAIRE SAMUELSON MEADOW, Esq. is in the private practice of law, concentrating in real property transactions. In addition, she works on title matters as a consultant, attorney and representative for a New York based title agency. She is the author of numerous real estate articles distributed to lawyers, and she has appeared on the General Practice “Hot Tips” panel at the New York State Bar Association’s Annual Meeting. Recently, she has been presenting Continuing Legal Education-credit programs on real estate and title matters to the Westchester County Bar Association, the New York County Bar Association and the National Law Foundation. Mrs. Meadow authored the residential real property chapters of the New York Lawyer’s Deskbook and Formbook for more than 12 years.
Before entering private practice, Mrs. Meadow was a staff attorney in the Enforcement Division of the Securities and Exchange Commission’s New York regional office. She is a Phi Beta Kappa, cum laude graduate of Hunter College, Class of 1959, and a graduate of Columbia Law School, Class of 1962, where she was a recipient of a Moot Court Scholarship.
Mrs. Meadow is listed in Who’s Who in American Women and Who’s Who in American Law. She is a recipient of a Westchester County Woman of Achievement Award and a Certificate of Special Congressional Recognition from Congresswoman Nita M. Lowey for “outstanding and invaluable service to the community.”
Mrs. Meadow was a founding member of the New York State Women’s Bar Association, Westchester County, and its first recording secretary. She is also a member of the New York State Bar Association, Real Property Committee; the Westchester County Bar Association; and the New Rochelle Bar Association.
Don’t think this attorney has a narrow horizon. She chaired the Westchester Women’s Bar Association Annual Golf Outing for six years causing it to become such a popular community event that, in some years players had to be turned away.
Mrs. Meadow welcomes inquiries by new lawyers and general practitioners concerning basic real estate or title matters. She may be contacted at 914-834-6472.