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Final Revisions to NY’s New Power of Attorney Law Enacted

By Carly M. Speyer, Esq.

New York’s power of attorney law (General Obligations Law Article 5, Title 15) was significantly amended in December 2020 to streamline both the power of attorney form included in the statute and its proper execution. (If you missed it, a summary of the new law can be found here.) At the time of signing, Governor Cuomo negotiated several amendments, to be formally adopted by the Legislature in future legislation. That “clarifying” legislation has now passed both houses and was signed into law by the Governor on March 25, 2021 (A02353/S00888) as Chapter 84 of 2021.

The new legislation modifies two provisions of the revised law and incorporates those modifications into the language of the statutory form.

First, the new legislation requires that the execution of the power of attorney instrument be witnessed by two persons who are not named in the document as agents or as permissible recipients of gifts of the principal’s property. The December 2020 legislation required only that the form be acknowledged in the same manner as a deed (i.e., acknowledged before a notary public or other individual qualified to take acknowledgments). With the modification, the form will still be acknowledged, but the two independent witnesses (one of whom may be the notary public taking the acknowledgment) must also be present. The additional witness requirement is intended to provide protection to the elderly and disabled population from fraud and abuse.

Second, the new legislation includes the New York State Department of Health, including social service districts, in the list of entities exempt from the law’s requirement to take action to honor, reject, or request additional information within ten days from the date of presentation of a power of attorney. This change is specifically intended to address concerns with the constraints in processing Medicaid or other public health insurance programs that would make compliance with the ten-day requirement overly burdensome to the Department.

The new law (including these modifications) will take effect June 13, 2021.

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