New York significantly revised the statutory power of attorney in 20091 primarily to discourage fraud and other perceived abuses in elder care and estate planning. Unfortunately, many unintended consequences emerged from these sweeping changes. The fallout created such confusion and criticism in the legal community that technical corrections and revisions to the law2 (the “2010 amendments”) were quickly implemented.
While there were many issues created from the 2009 law, this article focuses on those more commonly confronted in estate planning and discusses the effect of the related 2010 amendments, if any. Issues such as the: (i) accidental revocation of an existing power of attorney and (ii) inflexible successor agent provisions, have successfully been corrected by the 2010 amendments. However, there still remain significant problems due to: (i) inconsistent practices in timing the agent’s signature, (ii) the negative effect that a monitor may have on an agent’s appointment acceptance, (iii) the undefined meaning of “reasonable compensation” and (iv) the cumbersome gift rider and related technical requirements. These lingering issues necessitate further corrections or guidance in the near future.
Accidental Revocation
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