New York Amends Power of Attorney Law Retroactively SUMMARY The New York Legislature has now passed, and the Governor has signed, amendments to the New York Power of Attorney Law, Sections 5-1501 5-1514 of the General Obligations Law, which became effective on September 1, 2009. The amendments will become effective on September 13, 2010 and will then be deemed to have been in effect on and after September 1, 2009, in effect amending the prior law retroactively. The amendments will alleviate the concerns about the effect of the prior law on business and commercial transactions and the automatic revocation of prior powers of attorney. PRIOR LAW The 2009 law was enacted upon the recommendation of the New York State Law Revision Commission in order to provide safeguards against the potential misuse of powers of attorney. It required that all powers of attorney executed in New York by individuals include a cautionary statement to the principal and notice to the agent containing exact wording set forth in the law, and be signed by both the principal and the agent and acknowledged by them before a notary public. It included an optional standard form known as the statutory short form and a standard form major gifts rider. However, the law defined a power of attorney subject to the law as including any written instrument signed in New York whereby an individual appoints an agent to act on his or her behalf. This meant that routine powers of attorney used in commercial and business transactions had to comply with the new law in order to be valid. The broad definition was taken from a uniform law recommended in 2006 by the National Conference of Commissioners on Uniform State Laws, but the New York law did not contain any of the exceptions in the uniform law that removed certain business and commercial transactions from the scope of the definition. Moreover, unlike the uniform law, the 2009 law provided that the execution of a power of attorney automatically revoked any and all prior powers of attorney signed by the principal. The New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney www.sullcrom.com
2009 law therefore raised serious issues with respect to a wide range of common commercial and business practices involving powers or attorney. AMENDED LAW The amended law provides a list of exceptions that exclude powers of attorney used in business and commercial transactions for example, for transfer of property, exercise of voting rights and filing documents with government agencies, among other things from the definition of power of attorney and therefore from the requirements that the warnings and acknowledgements be included. Because the new law is retroactive, routine business and commercial transactions signed on and after September 1, 2009 that did not comply with the 2009 law will be effectively validated. Moreover, the amended law removes the presumption that the execution of a power of attorney revokes prior powers of attorney. On January 19, 2010, a White Paper on interpretive issues related to recent changes to the New York Power of Attorney Law was released by a group of New York law firms. The White Paper indicated that, in the view of the law firms, substantial portions of the power of attorney statute did not apply to a number of important issues, including proxies for shares of corporations and powers of attorney executed for transfer of certificated securities and the formation and governance of foreign entities. The passage of the new law and its retroactive application removes any need for interpretation in relation to these issues. The exclusions from the definition of power of attorney in the amended law recognize that a routine power of attorney given primarily for a business or commercial purpose does not need the same protections as a power of attorney given for financial and estate planning purposes. Thus, any power of attorney given primarily for a business or commercial purpose is excluded. In addition, the law specifically includes various types of powers of attorney that are routinely used in business and commercial transactions, such as proxies to exercise voting or management rights, powers prescribed by government agencies, powers given to banks and stock, insurance and real estate brokers, powers given by directors, officers and others acting as a fiduciary or on behalf of a business entity, powers contained in partnership, LLC and other agreements and powers given to sell real estate, including condominiums, and obtain mortgages thereon. After the 2009 law was enacted, as a result of concerns expressed, the New York State Bar Association established an Ad-Hoc Committee under the Chairmanship of former NYSBA President Katherine G. Madigan to study and recommend amendments. This Committee drafted and submitted to the New York State Law Revision Commission a proposed amendment of the statute. The Law Revision Commission reviewed the amendment and recommended almost all of it to the Legislature, which ultimately enacted it substantially as recommended. The only major issue proposed by the Ad-Hoc Committee that was not recommended by the Law Revision Commission was the elimination of the statutory gifts rider which is necessary for a power of attorney to grant authority to make gifts in excess of $500 per year. However, -2-
the amendment provides for the Law Revision Commission to study this issue and submit its findings by September 1, 2010. The remainder of this memorandum summarizes some of the more significant changes effected by the new law. A. BUSINESS, COMMERCIAL AND REAL ESTATE POWERS OF ATTORNEY Under the amended law, the definition of power of attorney excludes the following: 1. a power of attorney given primarily for a business or commercial purpose, including without limitation: (a) a power to the extent it is coupled with an interest in the subject of the power; (b) a power given to or for the benefit of a creditor in connection with a loan or other credit transaction; (c) a power given to facilitate transfer or disposition of one or more specific stocks, bonds or other assets, whether real, personal, tangible or intangible; 2. a proxy or other delegation to exercise voting rights or management rights with respect to an entity; 3. a power created on a form prescribed by a government or governmental subdivision, agency or instrumentality for a governmental purpose; 4. a power authorizing a third party to prepare, execute, deliver, submit and/or file a document or instrument with a government or governmental subdivision, agency or instrumentality or other third party; 5. a power authorizing a financial institution or employee of a financial institution to take action relating to an account in which the financial institution holds cash, securities, commodities or other financial assets on behalf of the person giving the power; 6. a power given by an individual who is or is seeking to become a director, officer, shareholder, employee, partner, limited partner, member, unit owner or manager of a corporation, partnership, limited liability company, condominium or other legal or commercial entity in his or her capacity as such; 7. a power contained in a partnership agreement, limited liability company operating agreement, declaration of trust, declaration of condominium, condominium bylaws, condominium offering plan or other agreement or instrument governing the internal affairs of an entity authorizing a director, officer, shareholder, employee, partner, limited partner, member, unit owner, manager or other person to take lawful action relating to such entity; 8. a power given to a condominium managing agent to take action in connection with the use, management and operation of a condominium unit; 9. a power given to a licensed real estate broker to take action in connection with a listing of real property, mortgage loan, lease or management agreement; 10. a power authorizing acceptance of service of process on behalf of the principal; and 11. a power created pursuant to authorization provided by a federal or state statute, other than this title, that specifically contemplates creation of the power, including without limitation a power to make health care decisions or decisions involving the disposition of remains. -3-
In addition, if a person signs a power of attorney acting as a fiduciary or as an official of a legal, government or commercial entity, the power of attorney will not have to meet the requirements of the law because the signer will not be within the definition of principal in the amended law. Also, the amended law does not prohibit the use of a statutory short form power of attorney in connection with any of the above transactions. B. NO PRESUMPTION OF REVOCATION Under the amended law, the execution of a power of attorney will not revoke any prior power of attorney unless the power contains a provision expressly revoking one or more powers of attorney previously executed by the principal. Termination of an agent s authority under a revoked power of attorney will not be effective until the agent receives notice of the revocation, but an agent will be deemed to receive it within a reasonable time after it is sent by mail, courier, electronic transmission or facsimile to the agent s last known address. If the original power of attorney was recorded pursuant to Section 294 of the Real Property Law, the revocation must be recorded in the same office. C. POWERS SIGNED WHILE PRIOR LAW IN EFFECT REMAIN VALID Any statutory short form power of attorney or statutory gifts rider executed after August 31, 2009 in compliance with the requirements of the prior law will remain valid, as will any revocation of a prior power of attorney that was delivered to the agent before the effective date of the amendment. D. CHANGE OF STATUTORY MAJOR GIFTS RIDER TO STATUTORY GIFTS RIDER The statutory major gifts rider has been renamed statutory gifts rider (SGR). If a power of attorney does not contain an SGR, gifts by the agent acting pursuant to the power are limited to $500 per year. The Law Revision Commission is to submit by September 1, 2010 a preliminary report of its findings, conclusions and recommendations regarding the SGR, and by January 1, 2012 a report of its findings, conclusions and recommendations on all aspects of the implementation of the law. E. POWERS OF ATTORNEY EXECUTED IN OTHER JURISDICTIONS Under the amended law, a power of attorney executed in another state or jurisdiction in compliance with its law is valid in New York, as is a power of attorney executed in another state by a domiciliary of New York in compliance with New York law, and a power of attorney executed in New York by a domiciliary of another state in compliance with that state s law. * * * Copyright Sullivan & Cromwell LLP 2010-4-
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