, Arps, Slate, Meagher & Flom LLP & Affiliates If you have any questions regarding the matters discussed in this memorandum, please contact the following attorneys or call your regular contact. Anastasia T. Rockas New York 212.735.2987 anastasia.rockas@skadden.com Kristine M. Koren New York 212.735.3674 kristine.koren@skadden.com * * * This memorandum is provided by, Arps, Slate, Meagher & Flom LLP and its affiliates for educational and informational purposes only and is not intended and should not be construed as legal advice. This memorandum is considered advertising under applicable state laws. October 27, 2009 Changes to New York s Power of Attorney Law New York State recently enacted a broad transformation of its power of attorney statute, which is generally effective September 1, 2009. 1 The Statutory Short Form and Other Powers of Attorney for Financial Estate Planning law introduces a new statutory power of attorney to replace the durable, non-durable and springing forms and imposes new requirements for the validity of statutory and non-statutory powers of attorney executed by individuals in New York State. Although the amendments do not affect the validity of powers duly executed prior to the effective date, the amendments provide for the revocation of a principal s existing powers of attorney upon execution of a new power of attorney unless otherwise specified. The amendments were intended to apply in the estate planning context but may apply to many routine commercial transactions as well. I. Background The amendments to the GOL were adopted in reaction to the perceived rise in the abuse of durable powers of attorney. One Assemblymember summarized the intent of the amendments as follows: Rewrite New York s power of attorney statute to ensure that agents for the elderly, the incapacitated and anyone who has given a power of attorney, are always answerable to that person, [such] that this powerful tool in planning for incapacity is not used to cheat and defraud. 2 II. Scope The new statute adopts a broad definition of power of attorney: a written document by which a principal with capacity designates an agent to act on his or her behalf. 3 An agent is defined in part as a person granted authority to act as attorney-in-fact for the principal under a power of attorney. 4 The breadth of the definitions suggests that the statute could apply in many situations other than estate planning, including in many commercial transactions, such as loan transactions allowing a creditor to exercise rights over collateral, stock powers, proxies, limited partnership, limited liability company and subscription agreements for investment funds that create powers of attorney in favor of the general partner or managing member, investment advisory agreements and powers of attorney executed in connection with routine SEC or tax-related filings. 1 N.Y. Gen. Oblig. Law 5-1501 et seq. (2009) [hereinafter GOL]. The amendments were originally effective March 1, 2009; however, Governor Paterson signed legislation extending the effective date to September 1, 2009. See 2009 N.Y. Laws ch. 4, sec. 1, 21, available at http://www.lawrevision.state.ny.us. Certain provisions are effective retroactively. Id. 2 Press Release, Assemblymember Alec Brook-Krasny, New Law Toughens Punishment for Assaulting the Elderly (May 6, 2008), available at http://assembly.state.ny.us/mem. WWW.SKADDEN.COM 3 GOL 5-1501(10). 4 GOL 5-1501(1).
2 The execution and validity requirements of the new law apply to powers of attorney that are executed in New York by individuals. The statute is intended to allow for the use of other forms of powers of attorney by entities. It provides: Nothing in this title shall be construed to bar the use of any other or different form of power of attorney desired by a person other than an individual as the term person is defined in 5-1501 of this title. 5 Powers of attorney executed in accordance with another state s laws are recognized as valid in New York, regardless of whether the principal is a domiciliary of New York. 6 It is not clear whether the statute is intended to apply to powers of attorney included in agreements that are governed by the law of a state other than New York. 1. Requirements for Powers of Attorney Effective September 1, any statutory and non-statutory power of attorney executed in New York by an individual must be: (i) (ii) legibly typed in no less than twelve-point font; signed and dated by a principal with capacity (as defined within the statute); (iii) signed and dated by the agent; (iv) (v) acknowledged by the principal and the agent in the manner prescribed for the acknowledgement of a conveyance of real property (i.e., notarized and the signature cannot be electronic); and contain the exact wording of the Caution to the Principal language and the Important Information for the Agent (regarding the agent s fiduciary duties) language provided in the statutory form. 7 2. Fiduciary Duties Owed by Agent The new statute imposes a standard of care for the agent, explicitly providing that the agent owes fiduciary duties to the principal when acting pursuant to the power of attorney. 8 The fiduciary duty provision applies to powers of attorney executed prior to September 1, 2009. An abbreviated version of these provisions is set forth below. 5 GOL 5-1501 B(4). GOL 5-1501(9) defines person as an individual, whether acting for himself or herself, or as a fiduciary or as an official of any legal, governmental or commercial entity. The definition creates some ambiguity as to the use of other forms of power of attorney by persons other than individuals. The GOL previously provided that the provision of a prescribed form does not bar the use of any other or a different form of power of attorney desired by the parties concerned. 6 GOL 5-1512. 7 GOL 5-1501B(1). Annex A hereto contains the Caution to the Principal language from GOL 5-1513(1)(a). 8 These amendments are a codification and expansion of certain existing case law. See, e.g., In re Estate of Ferrara, 7 N.Y.3d 244, 254 (2006) ( [T]he relationship of an attorney-in-fact to his principal is that of agent and principal..., the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing. (citation omitted)).
3 1. Standard of care. In dealing with property of the principal, an agent shall observe the standard of care that would be observed by a prudent person dealing with property of another. 2. Fiduciary duty. (a) An agent acting under a power of attorney has a fiduciary duty to the principal. The fiduciary duty includes each of the following obligations: (1) To act according to any instructions from the principal or, where there are no instructions, in the best interest of the principal, and to avoid conflicts of interest. (2) To keep the principal s property separate and distinct from any other property owned or controlled by the agent, except for property that is jointly owned by the principal and agent. The agent may not transfer the principal s property to himself or herself without specific authorization. (3) To keep a record of all receipts, disbursements and transactions entered into by the agent on behalf of the principal and to make such record and power of attorney available at the request of the principal. The agent shall make such record and the power of attorney available within 15 days of a written request by a monitor, a co-agent or successor agent and certain others as specified in the statute. (b) The agent may be subject to liability for conduct or omissions which violate the fiduciary duty. (c) The agent is not liable to third parties for any act pursuant to a power of attorney if the act was authorized at the time and the act did not violate subdivision one or two above. 9 The statute does not limit the application of the fiduciary duties to powers of attorney created by individuals, except potentially by allowing for the use of a different form for powers of attorney by entities. 3. Revocation The amendments do not affect the validity of powers duly executed in New York prior to September 1, 2009. However, unless the principal affirmatively states otherwise, the execution of a new power of attorney revokes all prior powers of attorney, even if a prior power of attorney designated a different principal or is totally unrelated to the new power of attorney. 10 9 GOL 5-1505(1) - (2). 10 GOL 5-1511(6).
4 4. Other Amendments In addition to the amendments described above, the new statute: mandates that all powers of attorney granted under the new statutory short form are durable, unless otherwise provided; 11 requires third parties to accept the statutory short-form power 12 and prescribes a special proceeding to compel third parties to accept such power; 13 requires execution of a separate Statutory Major Gifts Rider (SMGR) to confer gifting powers for any gift exceeding $500.00 per beneficiary, per calendar year. The SMGR must be witnessed by two persons not named as permissible gift recipients in the manner prescribed for the execution of a will and must be signed and dated by a principal with the principal s signature notarized; 14 sets forth rules applicable to co-agents acting under a power which provide that unless otherwise specified co-agents must act jointly; 15 specifies mechanisms for the termination of a power of attorney; 16 provides that an agent receives no compensation unless the principal specifies otherwise; 17 and provides the principal with the opportunity to appoint a monitor. 18 III. Limitations and the Technical Corrections Act The new law creates a number of issues and concerns, particularly for commercial transactions. As indicated by the legislative history, the reforms were primarily designed for application in the estate planning context. Although the New York State Law Revision Commission s 2008 Recommendation on Proposed Revisions to the General Obligations Law Powers of Attorney 19 stated that powers of attorney used in commercial and business transactions were beyond the scope of the Commission s Recommendation, 20 the new law does not include any exception for such transactions. 11 GOL 5-1501A(1). A durable power of attorney is not affected by a principal s future incapacity. GOL 5-1501A(2). 12 GOL 5-1504. 13 GOL 5-1510(3). 14 GOL 5-1514. 15 GOL 5-1508(1), (3). 16 GOL 5-1511. 17 GOL 5-1506(1). 18 GOL 5-1509. 19 The Commission s Recommendation is available online at http://www.lawrevision.state.ny.us/reports/2008_recommendation_re_general_obligations_law_may_26_2008.pdf. 20 Id. at 5 n.4.
5 In our view, a broad exception should be adopted for commercial transactions. In lieu of such a broad exception, there are specific provisions that need to be modified. The definition of power of attorney needs to be narrower so as to exclude delegations of authority unless the parties intend to create a power of attorney. The fiduciary duties should not apply to and are inconsistent with many commercial transactions. The statement that every power of attorney can be revoked at any time should not apply to commercial transactions or to any power of attorney that is coupled with an interest. Revocation of existing powers of attorney should not be an automatic default. The notarization requirement is too onerous for powers of attorney used in business transactions. The statute should be clarified so that it is explicitly inapplicable to powers of attorney included in agreements governed by the law of a state other than New York. For example, the Uniform Power of Attorney Act 21 includes certain exceptions for commercial transactions that should be considered in New York as follows: 22 (1) a power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction; 23... (3) a proxy or other delegation to exercise voting rights or management rights with respect to an entity... A technical corrections act is currently pending in the New York State Legislature, 24 but it is not clear when it would be adopted. The corrections address some of the problems with the new law 25 but do not go far enough. The New York State Law Revision Commission will continue to study all aspects of the new law for two years after the effective date of the Technical Corrections Act. The amendments are summarized below and: eliminate the automatic revocation of all prior powers of attorney and provide that revocation of prior powers of attorney must be affirmatively elected by written notice to the prior agent; 26 21 The Uniform Power of Attorney Act was drafted by the National Conference of Commissioners on Uniform State Laws and approved by it at its annual conference held July 7-14, 2006. The Uniform Power of Attorney Act is available online at http://www.law.upenn.edu/bll/archives/ulc/dpoaa/2008_final.pdf. [Hereinafter UPOAA.] 22 UPOAA at 103. 23 The Commentary to the UPOAA notes that if the power of attorney is coupled with an interest, the agent is not intended to act as the principal s fiduciary. Examples of powers of attorney coupled with an interest include powers of attorney granted to a creditor in connection with rights to collateral. UPOAA at 103 cmt. 24 S. 5910, 232d Leg., 2009-2010 Reg. S Sess. (June 18, 2009) [hereinafter Technical Corrections Act], available at http://assembly.state.ny.us. 25 On the other hand, the corrections decrease the amount that may be gifted without an SMGR. 26 Technical Corrections Act 2 ( Subdivision 6 of section 5-1511 of the general obligations law, as added by chapter 644 of the laws of 2008, is amended to read as follows: 6. The execution of a power of attorney does not revoke any power of attorney previously executed by the principal unless the principal gives written notice of revocation to the agent of the previously executed power of attorney being revoked. ).
6 delete the requirements that a revocation be signed and dated and delivered to any third party who the principal believes has received, retained or acted on the power of attorney; 27 clarify the ambiguity in language in the provision allowing for the use of other forms by a principal who is not an individual; 28 narrow the definition of power of attorney by excluding any document required by a governmental authority; and make certain other language corrections and clarifications. Unless and until further clarification on the application of the new reforms is available, any power of attorney executed in New York by an individual should follow the new requirements. All powers of attorney should specifically state that they are not intended to revoke any prior power of attorney (if that is the intent). Parties should consider the new fiduciary duties in executing agreements that may be covered by the statute. (continued on next page) 27 Third parties are protected from relying on a properly executed statutory short form power of attorney without actual knowledge of revocation. GOL 5-1504. 28 Technical Corrections Act 14 ( Subdivision 4 of section 5-1501B of the general obligations law, as added by chapter 644 of the laws of 2008, is amended to read as follows: 4. Nothing in this title shall be construed to bar the use of any other or different form of power of attorney desired by a principal who is not an individual. ).
7 Annex A CAUTION TO THE PRINCIPAL: Your Power of Attorney is an important document. As the principal, you give the person whom you choose (your agent ) authority to spend your money and sell or dispose of your property during your lifetime without telling you. 29 You do not lose your authority to act even though you have given your agent similar authority. When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interest. Important Information for the Agent at the end of this document describes your agent s responsibilities. Your agent can act on your behalf only after signing the Power of Attorney before a notary public. You can request information from your agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to the financial institutions where your accounts are located. You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound mind, a court can remove an agent for acting improperly. 30 Your agent cannot make health care decisions for you. You may execute a Health Care Proxy to do this. The law governing Powers of Attorney is contained in the New York General Obligations Law, Article 5, Title 15. This law is available at a law library, or online through the New York State Senate or Assembly Web sites, www.senate.state.ny.us or www.assembly.state.ny.us. If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you. 29 This language is required to be included in all statutory and non-statutory powers of attorney executed by individuals in New York regardless of whether it is accurate. 30 This language is required to be included in all statutory and non-statutory powers of attorney executed by individuals in New York regardless of whether it is coupled with an interest and is not otherwise revocable.