Top Five Areas of Concern about the New Statutory Short Form Power of Attorney

By: Gary E. Bashian, Co-Author

 

Prior to September 1, 2009, New York’s power of attorney form was simple to fill out and could be bought in local stationery stores without the need to go to an attorney. However, tabloid-worthy horror stories of agents misusing their power to steal from the aged and infirm led the legislature to react—and some might say overreact. A sweeping new financial-powers law took effect in New York on September 1, 2009, and it has created some unintended traps for residents.

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A Recent Primer on Undue Influence: Estate of Julia Elizabeth Taschereau

By: Gary E. Bashian, Esq.*

 

On October 29, 2010 Surrogate Webber, of the N.Y. County Surrogate’s Court, rendered a decision regarding the Will of Julia Elizabeth Taschereau (NYLJ 1202474902148 at *1) which offers a detailed illustration of how to meet the evidentiary burden of proving Undue Influence in a Will contest.

Objecting to a Will on the grounds of Undue Influence presents evidentiary challenges. The close relationships that often surround an allegation of Undue Influence make it difficult to prove by direct evidence. The burden is on the Objectant to prove motive, opportunity, and the actual exercise of Undue Influence.

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]

Technical Corrections to the New Statutory Power of Attorney and Statutory Major Gifts Rider

By: Gary E. Bashian, Esq.

 

On September 12, 2010, the Technical Corrections Act, signed by Governor Patterson August 15, 2010, will take effect, modifying the recently changed Statutory Short Form Durable Power of Attorney and General Obligations Law in a number of important ways. All references to the statute herein are to the General Obligations Law

These changes affect several areas, including: (1) allowable agents under the statutory Power of Attorney, (2) terms of revocation, (3) changes to the Statutory Major Gifts Rider, 94) an agent’s powers regarding Trusts and to engage in alternative dispute resolution, (5) requirements for third parties to accept an agent’s power under the form, and (6) effective Powers of Attorney created in other states or jurisdictions.

Some of these changes are broad ad uniform; others are more specific and directed.

Article 15: Short Form Power of Attorney- A Valuable Tool

Our firm recently argued before the Appellate Division, Second Department and was affirmed on the conflicting burdens of proof on a fiduciary when a gift is made pursuant to a short form Power of Attorney, modified in accordance with 1997 amendments to the General Obligations Law. Such was the case in Matter of Salvation Army v. Ferrara, 2005 NY Slip Op 07531 (October 11, 2005). The Appellate Division, Second Department, affirmed the decision and order of the Rockland County Surrogate’s Court. Both courts held that a Power of Attorney, which was modified to allow the respondents to make gifts to themselves “without limitation,” was valid in accordance with General Obligations Law §5-1503. The Appellate Court then went one step further and held that “evidence was adduced at the hearing to support the respondents’ contention that the decedent specifically authorized the distribution of his funds to the respondent Dominick Ferrara.” The Court then dismissed the action which sought the return of the gifts to the Estate.

5 Reasons Why We fell in Love with the Durable Statutory Short Form Power of Attorney and Statutory Major Gifts Rider Form

In the words of Elizabeth Barrett Browning, “How do I love thee? Let me count the ways.”

Effective September 1, 2009, the General Obligations Law (hereinafter “GOL”) has been amended, updated and refined to provide significant reforms to the use of Powers of Attorney in New York and to reflect the complexities that surround the use of Powers of Attorney in financial and estate planning matters.

Bashian & Farber, LLP invalidates Power of Attorney, Health Care Proxy and Protects $1 Million in Assets of an Incapacitated Person

On June 4, 2014, New York State Supreme Court Judge Hon. Sharon A.M. Aarons entered a Decision on an Article 81 Proceeding commenced by Bashian & Farber, LLP., granting our client a complete victory. Our client, the son of an elderly man suffering from cognitive decline, was concerned that his father’s assets of over $1 million dollars were being improperly taken by his step-mother against the wishes of his father who had previously drafted estate planning documents with the intent of providing all of his assets for the care of his disabled daughter. The son was further concerned that his step-mother was not able to take care of his father’s personal or financial affairs and sought to have a Guardian appointed.