New Durable Statutory Power of Attorney Form Enacted with Major Changes Effective, September 1, 2009

On September 1, 2009, significant changes to the New York law of Durable Powers of Attorney will take effect.

The current statute in the General Obligations Law has a Durable Power of Attorney Statutory Short form, which has been in effect since January 1, 1997 and is a basic form in which you can add unlimited gift giving authority to the Power of Attorney within the form by initialing a box. In Salvation Army v. Ferrara, 2006 N.Y. Slip Op. 05156 (2006) the Court of Appeals restricted the statutory provisions and determined that the gift-giving authority including gift giving to the attorney-in-fact, had to be in the “best interests of the principal,” which was narrowly defined as gift giving authority to the attorney in fact which is allowed only if it is for gift, income, and estate tax purposes.

The Westchester Human Rights Commission: A Convenient Forum

By: James L. Hyer, Esq.

 

For attorneys representing clients with claims of discrimination in housing, employment, public accommodations and credit the Westchester Human Rights Commission, (“Commission”), offers a convenient venue operating under straightforward rules and regulations.[i] This article addresses the key points of the procedures pertaining to the filings, investigations, and hearings within the Commission with respect to non-housing discrimination matters which are governed by separate county statute and rules as primer for attorneys.

Stewardship of Historic New York State Cemeteries

By: James L. Hyer, Esq.

 

Immediate legislative and administrative action is necessary to preserve the historic cemeteries of New York State (NYS) effectively. Worthy of preservation, these cemeteries present an amalgam of historic information, offering valuable data about the past and the evolution of society. Preservation of these sites will permit the continued opportunity to research the burial practices of the region, including the location and relocation of cemeteries, methods of burial, segregation in burial, trends of cemetery design and public perception of burial. This comment offers arguments in favor of historic cemetery preservation, a synopsis of pertinent NYS cemetery law, as well as ways to alter NYS laws, regulations and procedures to better achieve preservation.

Penny D. Taylor v. Joseph Rosa: A Recent Decision Changing the Law of Paternity By Estoppel

By: James L. Hyer, Esq.

 

On May, 2, 2007, a decision was rendered in Penny D. Taylor v. Joseph Rosa, No. 76026-04 (Bronx Sup. 2007), significantly changing the law of Paternity By Estoppel.

This noteworthy decision came less than a year after the New York State Court of Appeals holding In The Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 853 N.E.2d 610, 820 N.Y.S2d 199, 2006 N.Y. Slip Op. 05238 that ruled in favor of Paternity By Estoppel. In that case, the Court of Appeals upheld the lower court determinations that a man was required to pay child support for a child despite irrefutable DNA evidence that the child was not biologically his.

Court of Appeals Overturns Itself in Hyde and Approves Allocating Estate’s Attorney Fees against Objecting Beneficiaries if Litigation against Estate is Vexatious

By: Gary E. Bashian, Esq.

The New York Court of Appeals, on June 29, 2010, resurrected what it has deemed was the original intent of SCPA § 2110, which governs the fixing and determining of attorney’s fees for services rendered to a fiduciary, devisee, legatee, or ­­­­­interested party, for legal services rendered to a fiduciary by an attorney in Estate matters. In the Matter of Hyde,[i] the Court considered if a fiduciary’s legal fees, which the Estate is obligated to pay, could be allocated to a particular beneficiary who filed objections in an accounting proceeding, or if such fees must be paid by the Estate as a whole, and thus all beneficiaries share in the cost equally.

Estate Litigation Tidbits Fall 2006

“INITIALLY” IT SEEMED IMPORTANT:  DUE EXECUTION OF WILL DEMONSTRATED EVEN WHEN “INITIALS” AND SIGNATURE DID NOT MATCH

 

In this contested probate proceeding, Westchester County Surrogate, Hon. Anthony A. Scarpino, found that in executing her Last Will and Testament, the fact that the testatrix initialed each page of the instrument with her three initials, and signed her name without her middle initial, did not raise an issue on due execution.

The proponent of the Will set forth a prima facie case on due execution.  The objectant emphasized that while the Testatrix initialed each page of the instrument with her three initials, her signature did not contain her middle initial.

The Court held that the mismatched initials and signature did not raise an issue on due execution and granted summary judgment for the proponent.  In Re Taylor, N.Y.L.J. Feb. 6, 2006 at 46 (Sur. Ct. Westchester County).

Equity Prevails and Voids Marriage Between Aides and Aged Patients

As ever growing segments of the American population transition into senior citizenship, there has been an alarming rise in what is broadly known as Elderly abuse. Neglect, financial exploitation, physical and or mental abuse, are all forms of elder mistreatment that are adversely effecting increasing numbers of people in our community, and people throughout the country.

This unfortunate occurrence is exacerbated by tough economic times, an increasingly strained healthcare system, and a lack of awareness about the nature and depth of this problem on behalf of families, and the professional communities that offer services to them.

As illustrated in a recent series of decisions, the Courts have been actively taking steps to protect older generations from new forms of elder abuse by using traditional legal tools to address this growing social problem.

Elder Abuse: Tragedy and Triumph, a Practitioner’s Perspective

“My isolation leaves me weak,

however just my cause.

But opposing you, old as I am,

I will stop at nothing.”

– Sophocles.

 

As practitioners, Jurists, and medical professionals alike have all increasingly recognized, elder abuse is one of the most alarming, fastest growing, and tragic social issues of the early twenty-first century.

Although there is much disagreement if this trend is attributable to an increase in reporting, a greater formal acknowledgement of the issue, a larger and more inclusive definition of what constitutes elder abuse itself, or if elder abuse is indeed occurring with greater frequency, the unsettling fact remains that with life expectancy increasing and greater numbers of the American population enter senior citizenship, abuse rates for people over the age of sixty-five are rising.

Discovery Under the Surrogate’s Court Procedure Act: a Primer

Often when the issue of a discovery proceeding is raised in either a will contest, accounting contest or related litigated estate matter, the initial reaction by the attorney is to assume that reference is being made to the discovery and disclosure permitted by Article 31 of the Civil Practice Law and Rules. While the attorney would be correct in believing that the provisions of Article 31 of the CPLR and other laws relevant to practice and procedure apply in the Surrogate’s Court, a discovery proceeding in the Surrogate’s Court, as many attorneys have learned the hard way, is a beast of a different color.

The purpose of this article is to acclimate the general practitioner with some of the intricacies of Sections 2103 and 2104 of the Surrogate’s Court Procedure Act (SCPA) relevant to a discovery proceeding and to briefly touch upon what is commonly referred to as a reverse discovery proceeding permitted by Section 2105 of the SCPA.

Surrogate’s Court Wrongful Death Compromises 101

In any wrongful death action, a successful outcome for your client will doubtlessly be hard won. However, whether recovery comes from an “action or by settlement without an action,”[i] counsel’s job is far from over once an award is procured in the Supreme Court as the final phase of wrongful death litigation involves Petitioning the Surrogate’s Court to direct the final distribution of the recovery from the Decedent’s Estate to the proper parties.