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Question
Do I really need a power of attorney in New York?
A power of attorney is important for anyone who wants assurances that their financial needs will be met. It is necessary if you want someone to manage your property or finances when you become unable to make decisions for yourself.
A power of attorney is not only helpful when you are incapacitated. You can also use one when you are healthy but want someone to manage specific types of finances or transactions.
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How it works
The process takes less than an hour, and you can complete it from the comfort of your home.
Create an account
Create a secure account which is accessible through an easy dashboard you can access any time
Gather information
Indicate who your agent will be and what authority you want them to have
Complete your document
Answer all questions, then we’ll generate your digital documents for downloading, printing, and signing
Make it legal
Carefully follow the instructions provided in the form, which may include signing your documents in front of witnesses or a notary
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How to get a New York power of attorney
Decide which powers to give your agent
Carefully think about why and when you want an agent to act on your behalf. Following are some of the questions you should ask yourself before making a power of attorney:
- How broad or limited are the powers you want to give your agent?
- Do you want your agent to be able to act immediately or only when you are incapacitated?
- Do you want your agent’s authority to cease when you cannot make decisions for yourself?
New York allows gifts up to $5,000. If you want your agent to have the authority to exceed the $5,000 limit, you can fill out the gift modifications section of the power of attorney form to modify your agent’s gift-making authority.
Choose your agent and successor agents
You want to pick an agent whom you trust to follow your instructions and take actions with your best interests in mind.
You can select co-agents, but this can be risky. Unless your power of attorney states they can act separately, the co-agents must act together.
It is a good idea to select a successor agent to handle your affairs should your first agent become unavailable.
Get a form
If you do not use an attorney to make a power of attorney, you can use a form. Make sure your form is up to date with current laws. We offer easy-to-use, up-to-date New York power of attorney forms.
A New York power of attorney created before June 13, 2021, must contain the same wording as the statutory short form power of attorney in General Obligations Law section 5-1513. If it does not contain the exact wording, it will not be considered a statutory short form power of attorney. After June 13, 2021, a power of attorney is considered a statutory short form power of attorney if it “substantially conforms” to the statute’s wording.
A non-statutory power of attorney is valid in New York. But, it has limitations discussed in the sections below about the types of powers of attorney and refusing an agent’s authority.
Fill out your form and sign it with the correct number of witnesses
When you fill out your form, make sure you follow the directions to ensure that you grant the authority you wish to grant.
You must sign and date your power of attorney and have your signature acknowledged and notarized by a notary public. Unlike most states, New York requires an agent to sign the power of attorney and have their signature notarized for the power of attorney to be valid.
A principal can direct another person to sign and date a power of attorney on behalf of the principal if the principal is physically unable to sign and is present when the person signs. A signature by someone else on behalf of the principal must be acknowledged and notarized.
The effective date of a power of attorney is when a notary public acknowledges the agent’s signature. If there are two or more co-agents, then the power of attorney is effective when all the agents have signed and had their signatures acknowledged.
Deliver your power of attorney to the necessary people
After your power of attorney is properly signed, you should give copies to people who may need it.
You will want your agent to have either the original or a certified copy for a power of attorney. Some people or businesses may accept a photocopy, but they can demand an original or certified copy. You also should consider giving copies to any business or person you know your agent will deal with. This will make it more likely for them to accept your agent’s authority without demanding more proof of the power of attorney’s validity.
If your power of attorney is going to be used in a real estate transaction, you must file it with your county clerk’s office.
Frequently asked questions about New York powers of attorney
There are several types of powers of attorney in New York:
Statutory short form power of attorney
New York law can be confusing because its statutes contain a form power of attorney called the statutory short form power of attorney. However, the form you use does not need to be the one in the statute to be considered a statutory short form power of attorney. A power of attorney is considered a statutory short form power of attorney if it “substantially conforms” to the wording in the form in the statute.
In most cases, you will want a statutory short form power of attorney. If you want to create a non-statutory power of attorney, you should consult with an attorney licensed in New York.
Non-statutory power of attorney
New York law defines a non-statutory power of attorney as “a power of attorney that is not a statutory short form power of attorney.” Non-statutory powers of attorney are valid in New York, but they do not have the same protections against being rejected as the statutory short form power of attorney.
Durable power of attorney
A durable power of attorney is a power of attorney that stays effective when the principal is incapacitated. In New York, a power of attorney is considered durable unless it states that the principal’s incapacity terminates it.
In most cases, you will want your power of attorney to be durable so your agent can continue to manage your finances and pay your bills while you are incapacitated.
Nondurable power of attorney
A nondurable power of attorney terminates when the principal becomes incapacitated. You may want a nondurable power of attorney when you give an agent limited powers to handle a specific transaction. However, you should consider having a separate durable power of attorney to authorize another agent to act for you when you are incapacitated.
Springing power of attorney
A springing power of attorney becomes effective on a future date or when a specific event happens. The most common event used is incapacity. A springing power allows you to withhold power from your agent until you need them to act.
Although springing powers of attorney are popular, they can cause delay or confusion if you are not clear about how incapacity is determined and how your agent can prove incapacity to a third party.
You do not need a lawyer for a power of attorney. You can use a form that meets the requirements of the statutory short form power of attorney, like the forms we offer.
However, if you have a complicated family situation or a long list of limitations on your agent’s authority, you may want to consult with an attorney.
A power of attorney will last until one of the following events happens:
- There is a termination date listed in the power of attorney
- The principal dies
- The principal becomes incapacitated, and it is a nondurable power of attorney
- The agent dies, is incapacitated, or resigns and there is no successor agent or co-agent available
- The agent’s authority is revoked or terminated and there is no successor agent or co-agent available
- The power of attorney’s purpose is accomplished
- A court revokes the power of attorney
- The principal revokes the power of attorney
An agent’s authority will terminate, but a power of attorney will continue (if there are successor agents) when:
- The principal revokes the agent’s authority
- The agent dies, becomes incapacitated, or resigns
- The agent and principal divorce or annul their marriage, unless the power of attorney states that the agent’s authority will survive divorce or annulment
You can revoke a power of attorney or a specific agent’s authority at any time by giving your agent a signed and dated revocation. It is best to give it in person or to send it by a delivery method that allows you to confirm receipt. If your power of attorney concerns real property, you must file your revocation with the county clerk.
You also should give a copy of the revocation to every financial institution where you have accounts and anyone that has or might do business with your agent. If a business or person does not have notice of the revocation and the power of attorney is otherwise valid, they can bind you to any deal your agent makes.
In New York, a person or business cannot refuse to honor a properly signed statutory short form power of attorney without reasonable cause. Reasonable cause includes knowledge that the power of attorney is invalid, terminated, or revoked, or the agent’s refusal to provide an original or certified copy of a power of attorney.
A person or business can ask an agent to provide:
- The agent’s certification under penalty of perjury about any factual matter related to the agent, principal, or power of attorney
- A lawyer’s opinion about any legal issue regarding the power of attorney
The agent’s failure to provide either of the above documents is reasonable cause to reject a power of attorney.
If your parents are competent, they can hire an attorney or use a form to create a power of attorney or health care proxy.
You should speak with them before they lose capacity or before there is any question about their ability to understand what they are signing. It is also important to listen to their wishes and not impose your wishes on them, even if you think you have their best interests at heart.
If your parents are not competent to sign a power of attorney, you will need to ask a court to appoint you or another trusted person as guardian for them.
You may want to speak with a lawyer if:
- You don’t know who to choose as your agent
- You want to use a POA for Medicaid planning
- You want to discuss which powers you should give your agent
- You want legal review of your completed power of attorney
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