The New York durable power of attorney is a legal document that enables one party to authorize another party to represent them before governmental, financial, legal, and other institutions. The person issuing the durable power of attorney is called the principal, while the person representing the principal is called the agent or the attorney-in-fact.
The principal can use the durable power of attorney in every situation where they are not able to complete a certain action personally and want another person to be able to represent their interests before third parties.
This can happen for several reasons, such as the principal having a certain disability like dementia or Alzheimer’s disease or, on the other hand, simply because they are located far from the place where they need to take a certain action.
Durable Power of Attorney Laws & Requirements in New York
Laws & Requirements
Relevant laws: New York General Obligations, Article 5, Title 15.
Signing requirements: Both the principal and the agent must sign the durable power of attorney before the notary public. However, there must be at least two witnesses who acknowledge the principal's signature. (§1501B)
Statutory form: The New York Statute provides the durable power of attorney statutory form at § 5-1513.
“Durable” definition: According to § 5-1501A, “A power of attorney is durable unless it expressly provides that it is terminated by the incapacity of the principal.”
How to Fill out a Durable Power of Attorney in New York
#1. Designate an Agent
Firstly, you should determine the person who will represent you and protect your interests. Your agent should be a person of legal age and with legal capacity. Moreover, it should be a person who is trustworthy, especially if you authorize them to make decisions regarding your finances and healthcare.
In this section, you can also name the successor agent. The successor agent will act in case the primary agent becomes incapacitated or otherwise unable to represent you.
#2. Grant Authority
Once you have determined the agent, you should define their scope of authority.
In the New York durable power of attorney form, you have three main ways to determine the agent’s scope of authority:
Scope of Authority
General authority. If you select general authority, your agent will be able to take all the necessary actions and interact with any third party on your behalf. You can also limit the general authority by providing a list of activities that are outside of your agent’s scope of authority.
Partial authority. Here, you can select the activities that you want to include in your agent’s scope of authority from the list of activities listed in the durable power of attorney form. You select the relevant activity by signing your initials next to it.
Special authority. With this option, you can define the agent’s scope of authority in your own words. This gives you the most flexibility of all three options since you can include the activities that are not provided in the durable power of attorney form.
#3. Ensure the Form is Durable
In New York, a power of attorney is presumed to be durable, meaning that if you want your power of attorney to be non-durable, you should explicitly state so in the document.
#4. Sign the Form
After drafting the New York durable power of attorney, both the principal and the agent should sign it before the notary public. However, there must also be at least two witnesses who acknowledge the principal's signature.
#5. Notarize the Form
Every durable power of attorney in New York must be notarized. The notary public will acknowledge the principal’s and the agent’s signatures and the overall authenticity of the document.
#6. Store Your Durable Power of Attorney Form
After finalizing the document, you should keep the original copy in your possession and in a safe place. That way, you will prevent anyone from altering or misusing the document.
How to Revoke a Durable Power of Attorney in New York
You can revoke the New York durable power of attorney by issuing a verbal or written revocation, destroying the document with the intent of revocation, or making a new power of attorney that will revoke the previous one.
However, the best way to make the revocation is to issue the revocation letter. This letter should include the agent’s full name and the date of issuing the power of attorney you want to revoke.
To make the revocation effective, you should give a copy of it to the agent and to every third party they are interacting with on your behalf.