Detailed Checklist for Completion of New Form POA

Jan
2014
23

posted by on Uncategorized

Execution Requirements of New Statutory Short Form Power of Attorney

(i)        Section (b):  name and address of principal and agent(s); whether multiple agents may act separately

                   (a)       Names and addresses:  Insert the name and address of the principal, and the name(s) and address(es) of the agent(s).

                   (b)       Agents acting separately:  If more than one agent is named, and if the principal wants the agents to be able to act separately, the principal must initial the box which says “My agents may act SEPARATELY.”  Otherwise, the multiple agents must act together.

(ii)       Section (c):  name(s) and address(es) of successor agents (if any); whether multiple successor agents may act separately

                   (a)       Names and addresses:  If the principal wants to name successor agents, in the event the agents named are unable or unwilling to serve, the name(s) and address(es) of the successor agent(s) should be inserted here.

                   (b)       Agents acting separately:  If more than one successor agent is named, and if the principal wants the successor agents to be able to act separately, the principal must initial the box which says “My successor agents may act SEPARATELY.”

(iii)      Section (d):  durabilitynothing need be done in section (d): It contains advice to the principal that the Power of Attorney will survive his/her incapacity (a “durable power of appointment”), unless he/she states otherwise in Section (g) (“Modifications”).

(iv)      Section (e):  revocation of prior powers of attorneynothing need be done in section (e): It contains advice to the principal that if he/she wants to revoke prior powers of attorney, he/she must so state in section (g) (“Modifications”).

(v)       Section (f):  grant of authority:

                   (a)       15 separate powers:  There are 15 separate powers listed in section (f):

                                    (A) real estate transactions;

                                   (B) chattel and goods transactions;

                                   (C) bond, share and commodity transactions;

                                   (D) banking transactions;

                                   (E) business operating transactions;

                                   (F) insurance transactions;

                                   (G) estate transactions;

                                   (H) claims and litigation;

                                   (I) personal and family maintenance;

                                   (J) benefits from governmental programs or service;

                                   (K) health care records and payments;

                                   (L) retirement benefit transactions;

                                   (M) tax matters;

                                   (N) all other matters; and

                                   (O) authority to delegate the foregoing powers.

                   (b)       Selection of one or more, but less than all, of separate powers:  If the principal wants to grant the agent one or more, but less than all, of the separate powers, the principal may:

I.          initial the box next to each separate power he/she wants to give the agent; or

II.         Initial the box next to section (P), and fill in at the end of section (P) the powers he/she wants to grant the agent.

                   (c)       Selection of all of the powers:  If the principal wishes to grant the

agent all of the separate powers, the principal may:

I.          initial all of the boxes next to powers (A) through (O); or

II.         Initial the box next to section (P), and fill in at the end of section (P) the letters (A) through (O).  If the principal does this, he/she need not initial any other box.

(vi)      Section (g):  modifications:

                   (a)       Durability:  As set forth in section (d), in the unlikely event that the principal does not want the power of attorney to survive his/her incompetency, he/she must so state in this section (g).  A statement such as the following would be sufficient:

“This Power of Attorney shall be affected by my subsequent disability or incompetence.”

                   (b)       Revocation of prior powers of attorney: As set forth in section (e), if the principal wants to revoke a prior power of attorney, he/she must so state in this section (g).  A statement such as the following would be sufficient:

“I hereby revoke (all powers of attorney heretofore executed by me; the power of  attorney executed by me on ________, which named _________ as my agent)”

                   (c)       Effective at a future time or upon the occurrence of a specified contingency (“springing power”):  The GOL, before its amendment, had a statutory form for a “springing power of attorney”.1  There are no “springing” provisions under the new statute.  If the principal wants a “springing” power of attorney, he must state so in this section (g).  A provision such as the following (which is based on the previous statutory “springing power”) should be sufficient:

“This power of attorney shall take effect upon the occasion of of the signing of a written statement EITHER:

                         (I) By the physician(s) named below:

                        __________________________________________________

                        __________________________________________________

                        __________________________________________________

                        (Insert full name, address and telephone number of physician(s)) or if no physician(s) are named above, or if the physician named above is/are unable to act, by my regular physician, or by a physician who has treated me within one year preceding the date of such signing, or by a licensed psychologist or psychiatrist, certifying that I am suffering from diminished capacity that would preclude me from conducting my affairs in a competent manner:

-OR-

                        II. By the person(s) named below:

                        __________________________________________________

                        __________________________________________________

                        __________________________________________________

(Insert full name and address of certifying person(s) certifying that the following specified event has occurred:

                        __________________________________________________

                        __________________________________________________

                        __________________________________________________

                   (d)       Other modifications:  The principal can make any other modifications he wants here, including language to limit or supplement powers given to the agent.  A grant of gift-giving power to the agent would NOT be made in section (g), and would be made in section (h) and in a separate Statutory Gifts Rider.

(vii)     Section (h):  power to make gifts:  If the principal wants to give the agent the power to make gifts [over and above the power to make gifts of up to $500 per year (in the aggregate) under power I in section (f)], the principal must:

                   (a)       Execute SGR:  Simultaneously execute a separate Statutory Gifts Rider (“SGR”).2

                   (b)       Initial box:  Initial the box in section (h) which grants the agent authority to make gifts in accordance with the SGR which supplements the Power of Attorney.

(viii)    Section (i):  designation of monitorThis provision is optional, and except in very unusual circumstances, nothing need be done.  The principal has the power to designate a “monitor” (who has the authority to request, receive and seek to compel the agent to provide a record of all receipts, disbursements and transactions entered into by the agent on behalf of the principal).  If the principal wants to appoint a monitor, he/she must:

                   (a)       Initial box:  Initial the box in section (i) which provides that the

principal wants to designate a monitor.

                   (b)       Name and address of monitor:  Fill in the name and address of the

person designated as a monitor.

(ix)      Section (j):  compensation of agents:  This provision is optional, and in most cases would not be completed, unless the agent is an unrelated third party.  The agent would be entitled to receive reimbursement for reasonable expenses, whether or not this section is completed. If the principal wants the agent to receive “reasonable compensation”, he/she must initial the box in section (j).

(x)       Section (k):  acceptance by third partiesnothing need be done in section (k):

It contains an agreement by the principal to indemnify third parties for any claims that may arise against them because of reliance on the power of attorney.

(xi)      Section (l):  termination:  nothing need be done in section (l):  It contains advice to the principal as to the termination of the power of attorney.

(xii)       Section (m):  signature and acknowledgment:

                   (a)       The principal must sign on the line indicated for his/her signature.

                   (b)       The principal’s signature must be notarized.

(xiii)    Section (n)information for the agent:  nothing need be done in section (n):  It contains information for the agent as to his/her legal responsibilities for acting as agent.

(xiv)    Section (o):  agent’s signature and acknowledgmentThe name(s) of the agent(s) must be filled in, and the agent(s) must sign.  There are two signature lines.  The agent(s) need not sign at the same time as the principal, but the power of attorney will not be effective until the principal and at least one agent have signed, and their signatures have been notarized.  Multiple agents need not sign at the same time.  If one multiple agent has signed and another has not, the power of attorney will be effective as to the agent who has signed.



1 GOL 5-1506.

2 The principal may also execute a “non-statutory power of attorney.”

The Teahan & Constantino LLP website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of an attorney-client relationship. Prospective clients should not submit confidential information to Teahan & Constantino LLP or any attorney of the law firm until a conflict check has been run by Teahan & Constantino LLP. No attorney-client relationship is formed until Teahan & Constantino LLP has in its possession an appropriate engagement letter.

Site Design by MGC