How To Make a Power of Attorney in New York FAQ

What Is a Power of Attorney?

A power of attorney is a legal document that allows a person, called the principal, to appoint another person, called the agent, to handle financial matters, make decisions, and act on the principal’s behalf. The agent has a fiduciary duty to act in good faith and the principal’s best interest. A power of attorney is helpful if you can no longer manage your financial affairs or want the convenience of an agent assisting you. To make medical decisions, you need a power of attorney for health care.

Who Can Be My Agent?

Any person, including trust companies, can serve as your agent. An agent should be organized, responsible, and someone you trust. Avoid having co-agents, as more than one agent can complicate things. If your co-agents are to act jointly, if they disagree, nothing will get done. They may confuse and contradict each other’s actions if they act independently. It is better to name one agent and have a backup or successor agent if your primary agent is unwilling or unable to serve.

What Can My Agent Do in New York?

You specify what legal authority you want to grant your agent. Your agent can handle a broad scope of actions and financial decisions, such as paying bills, buying and selling real estate, and handling your investments. In New York, you can authorize your agent to handle:

• Real estate transactions – Selling, exchanging, conveying, managing, or developing real property.
• Chattel and good transactions – Accepting gifts, buying, selling, or conveying personal property.
• Bond, share, and commodity transactions – Selling (including short sales), managing, contracting, and executing investment agreements.
• Banking transactions – Opening, maintaining, and closing bank accounts, making deposits and withdrawals, writing checks, receiving statements and other documents, borrowing, accessing safe deposit boxes, etc.
• Business operating transactions – Performing or discharging any duty or liability, exercising any right or power, preparing reports, dealing with taxes, demanding and receiving money, executing and delivering documentation, hiring professionals, etc.
• Insurance transactions – Obtaining new policies, paying premiums, canceling or modifying policies, taking loans, making assignments, etc.
• Estate transactions – Taking action on behalf of the principal concerning any estate of a decedent, absentee, infant, or incompetent, or the administration of any other trust or fund in which the principal is interested, including receiving disbursements, acting as a fiduciary on the principal’s behalf, etc.
• Claims and litigation – Bringing actions, accepting settlements, submitting to alternative dispute resolution, appearing for the principal, hiring an attorney, paying judgments, etc.
• Personal and family maintenance – Maintaining the customary standard of living of the principal, the principal’s spouse and children, and other dependents of the principal, including living quarters, medical care, transportation, taxes, applications, etc.
• Benefits from government programs or civil or military service – Executing vouchers, taking possession of property, enrolling, applying, or discontinuing a benefit or program, filling claims, receiving financial proceeds of any claim, hiring an attorney or accountant, etc.
• Matters related to health care – Handling billing and payment matters but not making decisions about medical care.
• Retirement benefit transactions – Contributing to, withdrawing from, depositing funds, making investment decisions, rollovers, etc.
• Tax matters – Preparing, signing, and filing state, local, federal, and foreign tax returns, paying taxes and accepting refunds, etc.
• All other matters – Acting for the principal, as an alter ego, concerning all possible matters and affairs except for medical and health care decisions.

In New York, if you want your agent to make gifts to others from your property and assets, you must expressly authorize it. Similarly, you must explicitly authorize if you wish your agent to make a gift to themselves.

What Is a Durable Power of Attorney in New York?

A durable power of attorney means the power of attorney remains effective even if the principal becomes incapacitated. New York deems a POA durable unless it expressly states otherwise.

When Is the Power of Attorney Effective?

A durable power of attorney is effective immediately unless you create a springing power of attorney. A springing power of attorney becomes effective when a specific date or event occurs. An example is when a principal becomes incapacitated. In New York, a physician would determine and certify that the principal is incapacitated.

When Does the Power of Attorney End?

The power of attorney is no longer effective if one of these events occurs:

• The principal dies
• The principal becomes incapacitated if the POA is not durable
• The principal revokes the power of attorney
• The principal revokes the agent’s authority, and there is no successor agent available or willing to serve
• The agent dies, becomes incapacitated, or resigns, and there is no successor agent available and willing to serve
• The specific or limited purpose of the POA is accomplished
• The POA is revoked by court order

Additionally, if your spouse is your agent under your power of attorney and you divorce, their authority is immediately terminated. That is why it is a good idea to have a successor agent.

Does New York Have a Statutory Power of Attorney?

Yes. Under §5-513, New York has a statutory short form power of attorney. However, you do not have to use the statutory form as it has limitations. There are better options for a New York power of attorney. You can create your own power of attorney document customized to your needs or hire an estate planning attorney.

Can I Make My Own Power of Attorney in New York?

Yes. New York does not require hiring an attorney to draft a power of attorney. You can use online power of attorney forms if you know who you want as your agent and what powers you want to grant them. Online forms can save you time and money on legal fees. However, if you do not know who could serve as your agent or have questions about granting powers, it may be best to contact an estate planning attorney for legal advice.

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How Do I Make My Power of Attorney Valid in New York?

A principal must be 18 or older to make a power of attorney. The principal signs the document before two witnesses and a notary public. The notary can serve as one of the witnesses. The witnesses cannot be named agents in the power of attorney nor receive gifts from the power of attorney. If the principal can’t sign the document, they can direct someone to sign it for them in their presence.

Do I Have to Notarize My Power of Attorney?

Yes. Your power of attorney must have a notary attest to your signature.

What Should I Do After Signing My Power of Attorney?

Once you sign your power of attorney, distribute copies of the document to your agent, successor agents, and any banks or financial institutions you want your agent to work with. A bank or other agency may ask your agent to complete an agent certification form where they attest that the power of attorney is effective, and they have the authority to serve as your agent.

Does a Power of Attorney Agent Get Paid?

Under state law, your agent can be reimbursed for reasonable expenses incurred by serving as your agent. However, they may only receive compensation for their service if you provide for it in your power of attorney document.

Is My New York Power of Attorney Valid in Another State?

Yes. Generally, another state will honor a power of attorney created under New York law if it meets legal requirements.

Can I Revoke My New York Power of Attorney?

Yes. A principal may revoke power of attorney by delivering a revocation document to the agent. The revocation can be done in person or by a signed and dated document sent by mail, courier, electronic transmission, or facsimile. A principal should also notify any banks or agencies with the original power of attorney of their intention to revoke.

What Estate Planning Documents Should I Have in New York?

A financial power of attorney is critical if you are suddenly incapacitated and cannot handle your affairs. However, other estate planning documents are needed, such as a health care directive and last will and testament.

An advance health care directive combines a medical power of attorney and a living will or advance directive. You name an agent to access your medical information, speak with healthcare providers, and make healthcare decisions for you. You specify the medical treatments or life-prolonging measures you want when you have an end-stage illness or terminal condition.

A will is a document used after you die. In your will, you decide who you want to manage your estate, inherit your property, and care for your minor children and pets. Because you make these decisions, your family members save time and money in probate court.

Fortunately, using online estate planning templates to create a valid power of attorney and other New York estate planning documents is easy.