As of September 1, 2009, a major overhaul of New York law regarding powers of attorney came into effect. As attorneys and other professionals began to utilize the revised form of power of attorney, significant concerns were raised. The most recent legislation, enacted August 13, 2010, takes into account some of these concerns. While the new legislation makes a number of amendments, many of which relate only to "technical" issues; some of the more substantive amendments are as follows: • The execution of a new power of attorney does not automatically revoke any prior power of attorney. Agents granted the same authority under separately executed powers of attorney may now act separately unless otherwise specified by the principal.
Powers of attorney given for certain business transactions were included under the 2009 law. This was unintended since the statute was intended to address the perceived abuse of elder individuals. Accordingly, under the law as amended, certain powers of attorney given for specific purposes, including (among others) the following, are not governed by the provisions of the new law:
- Powers of attorney given primarily for a business or commercial purpose, including powers given to facilitate the transfer or disposition of certain property, including real property;
- Proxies or other delegations to exercise voting or management rights;
- Powers authorizing financial institutions to take actions relating to accounts held by such financial institutions;
- Powers given by an individual in such individual's capacity as owner or manager of a legal or commercial entity, including powers given to other owners or managers in the governing document of such entity;
- Powers given in connection with certain real estate matters, including powers given to managing agents and real estate brokers; and
- Powers, given pursuant to state or federal statutes, to make health care decisions or decisions regarding the disposition of one's remains.
- A divorce or annulment of a principal's marriage to his or her agent will terminate the agent's authority unless the principal expressly provides otherwise in the power of attorney.
- An agent's authority to make gifts to the principal's spouse, as provided in a “Statutory Gifts Rider” (formerly, a “Statutory Major Gifts Rider”), terminates upon the divorce or annulment of the marriage of the principal and his or her spouse.
- An agent can make gifts even where the principal has not executed a statutory gifts rider, if such gifts are to individuals or charities to which the principal customarily made gifts, provided that the aggregate amount of all such gifts in any year may not exceed $500. Under the 2009 statute, it was unclear if the $500 limit was in the aggregate or per donee. All other gifting authority can be set forth in a separate “Statutory Gifts Rider.”