Gov. Cuomo Signs New NYSBA-Advanced Power of Attorney Law

By Christian Nolan

Gov. Cuomo Signs New NYSBA-Advanced Power of Attorney Law

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In a major victory for New York State Bar Association advocacy on behalf of its members, Gov. Andrew M. Cuomo has signed a new NYSBA-advanced bill into law that simplifies and improves for consumers the state’s power of attorney form.

A power of attorney is one of the most widely used legal documents, allowing people who fear they will no longer be able to manage their own financial affairs to transfer that power to someone else. Doing so avoids the need for a time consuming and expensive guardianship proceeding when a person becomes incapacitated.

The current power of attorney form proved to be too complex, costly and difficult for individuals to use. Residents of nursing homes and long-term care facilities found it nearly impossible to fill out during the pandemic when an attorney was not present. Its rigid requirement that the exact language of the statute be incorporated in the document meant that the form could be invalidated for harmless errors.

The new law, which takes effect in 180 days, makes rejection of the document less likely because it allows language that substantially conforms with the statute rather than requiring the form to incorporate the exact wording. It also discourages banks and other financial institutions from improperly refusing to accept the form by allowing a judge to impose penalties and attorney fees against institutions that unreasonably refuse to accept a consumer’s valid power of attorney form.

Additionally, the reforms in this legislation eliminate the Statutory Gifts Rider.

“The reform of the power of attorney law is a big win for every New York resident and the New York State Bar Association,” said NYSBA President Scott M. Karson. “The coronavirus pandemic has forced us to reevaluate every aspect of our lives, and this important improvement could not come at a better time. It will protect our state’s vulnerable residents by helping them through a critical process at a time when a legal adviser may not be able to be at their side.”

Most importantly, the new law (A.5630-A/S.3923-A) creates a presumption in favor of the validity of a power of attorney form.

“When a power of attorney form cannot be executed, the rent goes unpaid, the utility payments can’t be made, and an incapacitated person goes without services that they desperately need,” Karson said. “When a consumer no longer has the capacity to sign a new form, the misery is compounded. This new law essentially makes accepting rather than rejecting the power of attorney the default.”

NYSBA CLE will hold a webinar – The New Power of Attorney: What Lawyers Need To Know – on Friday, Dec. 18 at 1 p.m.

In 2015, NYSBA established the Working Group on the Power of Attorney comprised of members from NYSBA’s Elder Law and Special Needs Section, Trusts & Estates Law Section, Business Law Section, Real Property Law Section and Health Law Section. The Task Force determined that the current power of attorney statute should be modified to include both substantive and technical changes and issued a report with recommendations, which was adopted by NYSBA’s House of Delegates in 2016 and provided the basis for the proposed legislation.

COVID-19 Webinars

Thursday, Dec. 17 – Jury Selection: NYSBA Trial Academy Virtual Conference.

Friday, Dec. 18 – Construction Law During the Pandemic.

Monday, Dec. 21 – Healthcare Dispute Resolution in Pandemic and Beyond: The Economic and Legal Impacts on the Resolution Continuum.

Latest NYSBA.ORG Coronavirus News

We are adding new content each day to our website related to the coronavirus public health emergency and its impact on the legal community.

Get caught up on all the latest NYSBA mentions in the News, including NYSBA President Scott M. Karson, who wrote an op-ed for Bloomberg Law concerning COVID-19 vaccinations and noted the moral imperative society has to collectively protect the most vulnerable. Numerous other publications have mentioned NYSBA’s position on the topic in recent weeks.

Karson’s President’s Message for the January/February NYSBA Journal discusses how in these historic times, NYSBA has been at the forefront of the national discussion on issues such as COVID-19 vaccinations and the presidential election.

Lastly, don’t forget to register for NYSBA’s 2021 Annual Meeting – a two-week virtual conference.

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