New York Power of Attorney Laws

If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.

• What Types of Power of Attorneys Are Available in New York?
• What Are the Legal Requirements of a Financial POA in New York?
• Steps for Making a Financial Power of Attorney in New York
• Who Can Be Named an Attorney-in-Fact or Agent in New York?
• When Does My Durable Financial POA Take Effect?
• When Does My Financial Power of Attorney End?

What Types of Power of Attorneys Are Available in New York?

You can make several different types of POAs in Arkansas. In particular, many estate plans include two POAs:

• a power of attorney for finances, which allows someone to handle your financial or business matters, and
• a power of attorney for health care, which allows someone to make medical decisions on your behalf (called a "health proxy" in New York).

In most estate plans, these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.

To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in New York.

What Are the Legal Requirements of a Financial POA in New York?

For your POA to be valid in New York, it must meet certain requirements.

Mental Capacity for Creating a POA

New York requires that the person making a power of attorney be able to understand "the nature and consequences" of the POA. (N.Y. Gen. Oblig. Law §5-1501(2)(c).) The exact contours of this mental capacity requirement are open to interpretation by New York courts. If you're helping someone make a POA and you're unsure whether they have the required mental capacity, consult an estate planning attorney.

Statutory Language

In addition, New York requires that certain language be included in the POA. If you make your POA using a statutory form, reputable software program, or local attorney (see "Steps for Making a Financial Power of Attorney," below), the resulting POA should automatically incorporate the required language.

Witnessing and Notarizing the POA

To finalize a POA in New York, the document must be:

• witnessed by two people who are not named as agents, and
• signed before a notary public.

In New York, the notary public can act as one of the witnesses; if you go this route, you would need to locate only one additional witness.

Note that New York did not previously require witnessing of POAs, but for new POAs made today, two witnesses are required.

Steps for Making a Financial Power of Attorney in New York

1. Create the POA Using a Statutory Form, Software, or Attorney

New York offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. For a more user-friendly experience, try WillMaker, which guides you through a series of questions to arrive at a POA (and estate plan) that meets your specific aims and is valid in your state. You can also hire a New York lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.

Whatever method you choose, the process of making the POA will include selecting, from a list, the specific powers you want your agent to have. For example, you might choose to grant your agent power over:

• Real estate
• Banking
• Retirement benefits
• Stocks, bonds, mutual funds, and other securities
• Business operations
• Benefits from governmental programs
• Taxes (for example, filing your taxes)
• Financial matters related to health care (like paying for health care or obtaining health care

An optional section in the New York POA also allows you to write in other powers or to limit your agent's powers if the standard list does not fit your goals.

In New York, the power of attorney is durable by default (meaning it remains effective after your incapacitation) unless you explicitly state otherwise in the document.

2. Sign the POA in the Presence of a Notary Public and Two Witnesses

As mentioned above, you cannot simply sign the document and call it a day. In New York, you must notarize the POA and also have it witnessed by two people who are not named in the POA as agents. The notary public can serve as a witness, so you might need to find only one more witness.

3. Store the Original POA in a Safe Place

Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your attorney-in-fact might need the original POA to act on your behalf.

4. Give a Copy to Your Agent or Attorney-in-Fact

You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.

5. File a Copy With the Land Records Office

If you checked off "real estate transactions" as one of the powers you granted to your agent, you should also file a copy of your POA in the land records office of any county where you own real estate. This will allow the land records office to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.

6. Consider Giving a Copy to Financial Institutions

You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.

Who Can Be Named an Agent or Attorney-in-Fact in New York?

Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.

New York allows you to appoint co-agents who are authorized to act at the same time, but it's usually advisable to stick to just one agent to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.

When Does My Durable Financial POA Take Effect?

In New York, unless you've explicitly stated otherwise in the document, your durable financial power of attorney takes effect as soon as you've signed it before witnesses and a notary public. It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are many reasons why this type of "springing" power of attorney is not usually advised.

When Does My Financial Power of Attorney End?

Any power of attorney automatically ends at your death. It also ends if:

• You revoke it. As long as you are mentally competent, you can revoke your document at any time.
• No agent is available. To reduce the likelihood of this happening, you can name a successor (alternate) agent in your document.
• A court invalidates your document. It's rare, but a court may declare your document invalid if it concludes that you were not mentally competent when you signed it, or that you were the victim of fraud or undue influence.

Additionally, in New York, if your spouse is named as your agent in your POA, that designation automatically ends if you get divorced. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.

For more on New York estate planning issues, see our section on New York Estate Planning.