When Drafting a Power of Attorney, Use Caution if Appointing a Monitor

When discussing the possible use of a power of attorney within New York State with a client, attorneys should take care in regard to the potential appointment of a monitor. Though the appointment of a monitor may appear to provide the principal additional protections against misconduct by an agent, the appointment of a monitor may only result in unrealistic expectations and a false sense of security if additional language is not added to modify that power of attorney.

In its 2006 decision for In Re Ferrara, the Court of Appeals stressed the need for agents appointed within a power of attorney to act consistent with the best interests of the principal.[i] The GOL was thereafter modified to provide individuals with more protections when creating a power of attorney.[ii]