Page 15 - The Suffolk Lawyer - May 2021 - Vol. 36, No. 3
P. 15

REAL ESTATE DEVELOPMENT • SPECIAL SECTION • REAL ESTATE DEVELOPMENT




            (Statutory Powers continued from cover)         mit an affidavit that the power of attorney is manner  described  in  subparagraph  2  of
                                                            in full force and effect.  A rejection must be paragraph (a) of section 3-2.1 of the estate,
            exact wording of the “Caution to the Princi-
                                                            in a writing that sets forth the reasons for powers and trusts law in the presence of the
            pal” and the “Important Information for the
                                                            the rejection.  Notice of rejection must be principal.    The  person  who  takes  the  ac-
            Agent” and the requirement of an acknowl-
                                                            sent to the principal and the agent.  How- knowledgment may also serve as one of the
            edged signature of the agent.  The current
                                                            ever, if the reason for rejection is the referral witnesses.
            power of attorney form, with its separate gift
                                                            by the third party to adult protective serv-
            rider, however, is too complex, and simple      ices, no notice to the agent is required.  This Other Changes
            errors may result in an invalid power of at-
                                                            10 business day time limit does not apply to        GOL § 5-1502D has been changed to pro-
            torney.  Since there are no financial penalties
                                                            certain government agencies, such as the vide that if the power of attorney requires
            if a bank unreasonably refuses to accept the
                                                            Department of Social Services.  If the third that two or more agents act together as co-
            form, acceptance of the current form has
                                                            party receives a written response to the re- agents, one or more agents may delegate to
            been a problem.
                                                            jection, the third party has 7 business days the co-agents the authority to conduct bank-
               There will be major changes under the
                                                            after receipt to either honor the power of at- ing transactions if the principal initialed sub-
            new law, effective June 13, 2021.  These
                                                            torney or finally reject it.  There is no time ject (O) in the grant of authority provisions
            changes include the elimination of the gift
                                                            limit for responding to the rejection.           of paragraph (f) of the power of attorney
            rider, penalties for unreasonably refusing to
                                                                                                             form.  This is the paragraph that permits the
            accept the power of attorney, replacing the                                                      agent to delegate powers.  Some financial
            “exact wording” requirement with “substan-      Replacing the “Exact Wording”                    institutions refuse to open accounts that re-
            tially conforms” and change to the signing      Requirement with “Substantially Con-             quire two signatures.  This has created prob-
            requirements.                                   forms” GOL§ 5-1501
                                                               The requirement that the power of attor-      lems  where  agents  are  required  to  act
            Elimination of the Gift Rider                   ney contain the “exact wording”of the statu-     jointly.
               GOL§ 5-1514,the statutory gift rider form,   tory  form  has  been  replaced  with  the          The  “IMPORTANT  INFORMATION  FOR
            is repealed and there will no longer be a gift  requirement  that  the  form  “substantially     THE AGENT” section has been changed to
                                                                                                             make clear that the agent must keep either
            rider.  Provisions for granting the power to    conform”  to  the  wording  of  the  statutory   records or receipts of all transactions.  The
            make gifts can be made in paragraph (h) of      form.  The statute contains a definition of
            the form, which is the modification section. “substantially conforms.”  The form substan-        power of attorney form has been modified
            In addition, the principal must also initial tially  conforms  notwithstanding  that  the        to include a place for the date that the agent
            paragraph (g) of the form to confirm that       form contains (i) an insignificant mistake in    signs.  GOL § 5-1502L, Retirement Benefit
                                                                                                             Transactions, does not include the power to
            the power of attorney is being modified to      wording, spelling, punctuation or formatting,    change beneficiary designations, unless ex-
            permit gifting.  There will also no longer be   or the use of bold or italic type; or (ii) uses
            a need to worry if a gift modification should language that is essentially the same as, but      pressly stated otherwise in the modification
            be in the gift rider or in the form itself.  GOL§ not identical to, the statutory form, including  section of the power of attorney form.
            5-1502I has been amended to increase to utilizing language from a previous statute.
            $5,000 the amount that can be gifted each The determination of whether there is sub-
            year without the necessity of a modification stantial conformity with the form shall not
            of the power of attorney.                       depend on the presence or absence of a par-
                                                            ticular clause.  Failing to include clauses that
            New Penalties for Unreasonably                  are not relevant to a given power of attorney
            Refusing to Accept the Form GOL§                shall not in itself cause such power of attor-
                                                            ney to be found to not substantially conform
            5-1504
                                                            with the requirements of the statutory form.
               Damages  and  attorney’s  fees  may  be
                                                            Sections  designated  as  “Optional”  on  the
            awarded against third parties who unreason-
                                                            form can be replaced by the words “Inten-                Richard A. Weinblatt
            ably refuse to accept the power of attorney.
                                                            tionally Omitted.”                                            Partner, Certilman, Balin,
            Third  parties  who  reasonably  accept  the
                                                                                                                             Adler & Hyman, LLP
            power of attorney are held harmless from li-    Change to the Signing Requirements
            ability.                                                                                            Richard  practices  primarily  in  the  areas  of
                                                            The new changes permit the signing of the           Elder Law and Trusts and Estates.  Richard
               There is also a new procedure and time
                                                            power of attorney in the name of the princi-        graduated magna cum laude from St. John’s
            limits for acceptance.  A third party being
                                                            pal by another person, other than the prin-         University School of Law in 1988.  He is a
            asked to accept the power of attorney may
                                                            cipal’s  agent  or  successor  agent,  in  the      member of the New York State Bar Associa-
            request, and rely upon, without further in-                                                         tion, National Academy of Elder Law Attor-
                                                            principal’s presence and at the principal’s di-
            vestigation (i) an agent’s certification under                                                      neys  and  a  former  Director  of  the  Suffolk
                                                            rection.    The  person  signs  by  writing  or
            penalty of perjury of any factual matter con-                                                       County Bar Association.  He is a Past Chair of
                                                            printing the principal’s name and printing          the New York State Bar Association’s Elder
            cerning the principal, agent or power of at-
                                                            and signing his or her own name.  The sig-          Law and Special Needs Section.  Richard is a
            torney; and (ii) an opinion of counsel as to
                                                            nature of the person signing must be ac-            past Associate Dean of the Suffolk County Bar
            any matter of law concerning the power of
                                                            knowledged in the manner prescribed for             Association’s Academy of Law, past President
            attorney if the person making the request                                                           of the Estate Planning Council of Long Island,
                                                            the conveyance of real property in the pres-
            provides in a writing or other record the rea-                                                      Suffolk Chapter and is a former Co-Chair of
                                                            ence of the principal.  The power of attorney
            sons for the request.  The third party has 10                                                       the Suffolk County Bar Association’s Elder Law
                                                            form must be witnessed by two persons who           Committee, Surrogate’s Court Committee and
            business days after presentation to (i) honor
                                                            are not named in the instrument as agents           Tax Committee.  Richard is also an adjunct
            the power of attorney, (ii) reject the power
                                                            or as permissible recipients of gifts, in the       professor at Touro College Jacob D. Fuchs-
            of attorney, or (iii) request the agent to sub-                                                     berg Law Center.
            MAY 2021 EDITION            www.scba.org • The Official Publication of the Suffolk County Bar Association • THE SUFFOLK LAWYER  15
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