Power of Attorney Requirements in New York

Power of Attorney 101

A power of attorney (or POA) is a legal document that gives one person (known as the "agent") the authority to act for another person (known as the "principal").

Typically you use a POA if you can't be present to take care of a financial matter, or you want someone to be able to take care of your finances in the event you become incapacitated. A POA can also be executed specific to medical issues.

Traditionally, a power of attorney automatically ended if the principal became incapacitated. A POA that continues after the principal becomes incapacitated is known as a "durable" power of attorney.

Also, traditionally, a POA became effective immediately upon being property signed by the principal. A POA that does not become effective unless and until the principal becomes incapacitated is known as a "springing" power of attorney (which by its nature is also durable).

Why use the official forms?

Creating a power of attorney in New York by using the official form (both financial and medical) will increase the chances that it will be readily accepted by those with whom your agent will need to conduct business. 

A different form may be questioned if it appears different from the New York form that is familiar. New York law makes it unlawful for someone to refuse to honor a POA in the official form, except under certain specified situations.

Finally, using the official forms will provide information about, and help assure compliance with, New York's legal requirements. 

New York's basic requirements

According to the New York Consolidated Laws, General Obligations Law, Section 5-1501B, a POA must:

• Be typed or printed “using letters which are legible or of clear type no less than twelve point in size, or, if in writing, a reasonable equivalent thereof."
• Be signed and dated by the principal, when the principal has mental capacity.
• Be acknowledged by the principal before a notary public as required for a conveyance of real property.
• Be signed and dated by the agent before a notary public.

There is also certain specific language required to be included, which is part of the official form. Special additional requirements, and an additional form, are required if you wish to allow your agent to make certain gifts on your behalf.

New York Financial power of attorney form

The New York legislature has created a financial power of attorney form, which is titled Power of Attorney New York Statutory Short Form. This form can be found in the New York Consolidated Laws, General Obligations Law, Section 5-1513.

The official form creates a durable POA that is effective immediately unless you add different provisions in the section of the form designated "MODIFICATIONS."

You could make it a springing POA by inserting: "This POWER OF ATTORNEY shall become effective upon my subsequent incapacity."

You could also add the manner in which your incapacity would be determined, such as by stating it requires certification of incapacity by two physicians who have examined you.

Medical power of attorney

The New York legislature has created a medical or healthcare power of attorney form. This is titled Health Care Proxy and may be found in the New York Consolidated Laws, Public Health Law, Section 2981.

This law also states that the Health Care Proxy must be signed and dated by the principal, and must be signed by two adult witnesses who witnessed the principal sign.

It also contains various other requirements for witnesses. Sections 2983 and 2994-c describe in detail how a determination is made that the principal has become incapacitated.

Understand what you're signing

Reading through the form, either before or as you complete it, will give you a wealth of information about powers of attorney in New York.

It's critical that you understand the powers you are giving to another person when you execute a financial or medical power of attorney.

It's also important to have these New York documents in place before you actually need them.