Attention NY Legal Professionals: Smoother Sailing Ahead for Obtaining Sworn Statements
By Gabrielle Wasenius In New York, attorneys have traditionally been permitted to submit affirmations to courts instead of affidavits, the law controlling this practice, CPLR 2106, removed the prior mandate for attorneys to acquire a notary public’s oath before presenting their sworn statements. The CPLR drafters believed that attorneys’ professional responsibilities and the potential for prosecution for false statements were adequate safeguards against dishonesty, thus eliminating the necessity for a notary public. Additionally, the law allowed specific medical professionals to affirm the veracity of their own statements. In 2014, CPLR 2106 was amended to permit affirmations instead of affidavits from individuals located outside the United States, Puerto Rico, the United States Virgin Islands, or any territory under U.S. jurisdiction. This change sometimes made obtaining a statement from someone overseas than from a person in a nearby state easier. On October 25, 2023, Governor Kathy Hochul signed two laws amending CPLR Rule 2106. Effective immediately, A06065 / S02997 expanded the scope of who can make affirmations in civil actions to include all licensed healthcare professionals. Effective January 1, 2024, A05772 and S05162 allowed affirmations in lieu of affidavits to be made by any person in a civil action. The new law applies to both new legal actions initiated on or after January 1, 2024, and to actions that are still pending as of the effective dates. Now, a statement made by any individual and affirmed by that individual as true under penalty of perjury can be used in a legal action in New York as a substitute for an affidavit, with the same legal weight. The affirmation should contain this language: I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. (Signature) Keep in mind, the new CPLR 2106 does not eliminate the need for notarized affidavits and affirmations entirely. Notarization will still be required in cases where the law mandates the declarant to verify their identity or the document’s authenticity. Nonetheless, this amendment modernizes New York law, aligning it with practices in more than 20 other states. It will reduce the burden on litigants, witnesses, clerks, and courts. Moreover, it helps to overcome logistical and financial barriers, like trying to obtain a notarized document from a non-New York heir who is party to a New York action. Hopefully, this change reflects New York’s dedication to adapting its legal system to meet contemporary needs and challenges.
Changes in New York\’s Power of Attorney
Author Gabrielle Wasenius Laws always evolve. Here at the Law Offices of Max Elliott, we stay current on estate planning, estate administration, and probate laws of the jurisdictions we serve. The laws related to the New York Power of Attorney (POA) underwent significant changes in 2021, bringing more flexibility for those preparing POAs and greater safeguards for those relying on them. One notable improvement is that the POA no longer requires an “exact wording” match but only wording that that “substantially conforms” to the statute. Previously, even minor typos or small mistakes could invalidate POAs. While the wording requirement changed, the fundamental rule that an agent’s powers are limited to those listed in the POA remains unchanged. However, the new law allows for more powers to be granted to agents, especially regarding gift-giving. Before the law changed, an agent could only make annual gifts of less than $500 unless the principal initialed a section of the POA to grant authority to the agent to make larger gifts and then also executed a separate Statutory Gifts Rider. The Statutory Gifts Rider had to be notarized and signed by 2 witnesses. These requirements were meant to combat fraud and abuse. But, requiring 2 forms created confusion. While POA forms properly executed under the law in effect at the time of their signing remain valid, the new POA law eliminates the Statutory Gifts Rider completely and allows for gifting provisions to be included in the POAs Modifications section. It also includes a standard provision allowing up to $5,000 in gifts per year, with the option to specify other amounts in the document itself, specifically in the Modifications section. This significantly simplifies the process. The new law also makes POAs easier to use. The law ensures that third parties like banks cannot reject a properly executed POA without good cause, and the statute provides a specific timeframe for them to do so. If they unreasonably refuse to recognize the agent\’s authority, they may be held responsible for damages and reasonable attorney fees and costs by a court. The law also protects those who rely on POAs. The safe harbor provision shields third parties from liability if they act in good faith, even if the POA turns out to be invalid. However, for this protection to apply, the POA must appear to be executed correctly, and the recipient must not have actual knowledge of forgery, voidness, or misuse of authority. This provision does not protect parties involved in fraudulent activities. These legal changes in the New York POA make it easier for agents, principals, and estate planning attorneys to work within the system. A well-prepared POA, along with other advanced directives, can provide valuable protection when needed. Don\’t wait until a crisis; start planning today for a more secure tomorrow.
April Showers Brought May Flowers and More…
Cultivating Your POA Relationships Reaping what you sow translates to more than just the garden—your work, lifestyle, education, relationships (personal and professional). As we previously discussed here and here, as the Principal, you can grant an individual authority through legal instruments to act as your Agent in different ways and for different circumstances. Besides cultivating the relationship with the person designated as your Agent in the power of attorney (POA) world, should you be fostering relationships with others? Yes, third parties. Who are “third parties?” Third parties are any person or entity – such as banks, brokers, businesses, etc. – that your Agent may deal with on your behalf. These entities (or persons) may examine the POA to make sure the Agent does in fact have the proper authority before allowing the Agent to make your legal or financial decisions. In true CYA fashion, these third parties can question the legitimacy of a POA, queuing up legal headaches. By forming a relationship with these entities or persons (and your estate planning attorney, of course), you can let them know about any POAs you form and even introduce them to your Agent before the need for Agent authority arises. Agent Authority. Your Agent may do as much or as little as you have directed them to do and for as long as you have determined they may act for (while keeping in mind that some POAs last indefinitely). It’s crucial that POAs are drafting correctly and fully grasp the details about how you want your affairs handled. Termination and Third Parties. You have the power to terminate the Agent’s authority at any time. But, to make sure the Agent doesn’t continue acting on your behalf without your knowledge, you must notify third parties that the Agent can no longer make legal or financial decisions for you. This is especially important if any third parties have dealt with your Agent previously and the Agent has acted under the POA. You may end up bearing the risk of your Agent continuing to make financial and legal decisions for you if your third parties are unaware that the relationship ended. Start sowing. Maintaining your relationships with your Agent and any third party is equally as important even after you have a POA in place. Iron out the specifics by talking with your New York estate planning attorney to make sure your ducks are all in a row.
Springing into power? Deciding the Right POA in New York
Written by Melissa Aristizabal We sprang forward into spring on March 8th but have been diligently cooped up #stayhome dreaming of brighter days to come. Planning for the future (well, further out than this public health crisis, of course) often includes having a plan in place so that another person — someone you trust – may legally act on your behalf. This is especially important if you’re unable to do so. This grant of legal rights is known as a Power of Attorney (POA). A POA is a legal document that, under New York law, allows you, the ”Principal,” to appoint an another individual as your “Agent” to act and make legal decisions on your behalf. The authority granted to the Agent can cover multiple areas or can be narrowed to one such as real estate transactions. You, the Principal decides this agency scope. So when can the Agent begin acting on your behalf? Either immediately or on the happening of a specific event or date. Simple enough, right? Not so fast. This determination can have drastic consequences. Durable Power of Attorney. A durable POA is one that grants rights immediately to the agent which will survive even if the principal becomes incapacitated—meaning when you no longer have the ability to physically or mentally make legal, financial, or personal decisions for yourself. A Durable POA will last until the principal revokes it or passes away. If the principal decides to revoke a durable POA, the principal must notify any third parties in writing that the agent cannot act on their behalf. So what’s the main issue here? This type of POA is indefinite. Springing Power of Attorney. On the other hand, a springing POA comes into play when a specific event or a specific date occurs. To create a springing POA, an event or a date must be spelled out in the POA at the time of signing. An issue that arises here is that, if the event never occurs or the Principal loses capacity before the specific date, then the POA is of no use and the Agent cannot act on behalf of the Principal. The Agent cannot act on behalf of the Principal and the Principal does not have the capacity to enter into a new durable POA unless and until the event or date occurs. However, this does not ring true for springing POA’s where the event is in fact a determination of incapacity – then the POA becomes a durable POA. Worried about abuse of power? New York state law allows you to appoint a watchdog to keep tabs on your Agent. Your monitor can – under Section 5-1509 of the General Obligations Code – request receipts and records of all transactions made by the Agent and on your behalf. The monitor can also request a copy of the POA. This helps to ensure that the Agent is acting with your best interests and within the power given under the POA. Now, It\’s Up to you. As the Principal, it is ultimately your decision on the type and scope of your POA . Thinking about obtaining a POA? Good. Just be sure to contact your New York estate planning attorney to help you work out the specifics.
New Laws Approaching Fast
Summer has ended for most families with children and we thought about this and other family dynamics in our most recent newsletter. However, the summer didn\’t stop Illinois Governor Pritzker from approving several laws that will affect families and businesses in the coming months. Here\’s a few that you may find interesting: The Illinois Trust Code, effective January 1, 2020, aligns Illinois with states that have adopted or established their own version of the Uniform Trust Code. Meaning for you: As you and your family move among the states, your estate plan may not need much revision. Assault or battery of an elderly person results in a loss of inheritance, effective January 1, 2020. Meaning for you: Nothing, we hope. Recreational cannabis will be legal in Illinois, effective January 1, 2020. Meaning for you: If you will partake or endeavor commercially, remember it is still against the law, federally, Uniform Partition of Heirs Property Act, effective January 1, 2020. Meaning for you: If you inherit property with someone else as a co-tenant and y\’all can\’t get along, the property can be sold without mutual agreement. Department of Public Health Powers and Duties Law amended to allow a feasibility study for a state repository for Healthcare Powers of Attorney and other medical Advanced Directives. Meaning for you: Unclear; these are your taxpayer dollars going to a study to determine if your medical information should be held by the State. Those are the headliners that we found relevant to our clients and associates. We\’ll be providing deeper analyses of these issues and others as the laws become effective and part of our society\’s fabric.
ABA to Judges: Obergefell Is Still the Law
FACTS. Judge Vance Day, an Oregon judge, was appointed to the bench in 2011 and, upon appointment agreed to solemnize weddings. Judge Day was re-elected to the bench in 2012. In 2014, Oregon overturned its constitutional ban on same-sex marriages. Shortly thereafter, a judicial clerk and assistant asked Judge Day whether he would perform same-sex marriages because of the judge\’s view that marriage was only to occur between one man and one woman. In response to that question, Judge Day created a screening process whereby if he was asked to perform a marriage, his staff was to try to ascertain whether the couple were a same-sex couple. If the couple were a same-sex couple, then the staff was instructed by Judge Day to tell the couple that the judge had a scheduling conflict. If the couple was straight, then the staff could schedule the ceremony. There was only one incident in which the screening took place and a same-sex couple was identified. And on that occasion, Judge Day had a legitimate conflict. ANALYSIS. Judge Day’s behavior was brought before the Oregon Commission on Judicial Fitness and Disability and he was charged with violating a Judicial Rule of Conduct. Judge Day argued that he had not discriminated against any known parties so he could not be reprimanded. The Commission disagreed, explaining that performance was the low bar for judges and that the additional bar judges must abide by is the appearance of impartiality. Judge Day then contended that because his screening process was internal, the appearance of impartiality was sustained. Wrong. The staff knew what he was doing and so he failed that test. The Formal Opinion explained 2 of the cardinal rules of judges’ conduct are to (1) perform their duties impartially and (2) not promote or appear to promote favoritism for certain classes or segments of society. To follow these rules, judge must not evince bias based on “race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.” And this is an in-exhaustive list. CONCLUSION A judge who performs marriages for opposite-sex couples cannot refuse to perform marriages for same-sex couples. The Formal Opinion even hearkened back to Obergefell v. Hodges, explaining that Obergefell is still the law and the Model Rule of Judicial Conduct requires judges to comply with the law. The Formal Opinion did acknowledge the fact that the Obergefell and infamous Masterpiece Cakeshop decisions considered the issue of deep convictions regarding the concept of marriage. BUT, the Formal Opinion, concluded judges are officers of the law beholden to the model rule. Either marry all or none.
Black History Shows Us When Opinions Are Long…
Honoring Black History Month by reflecting on cases and legal actions that affect and effected Black America is consonant with being an African-American attorney and would benefit other non-African-American, attorneys, as well. So, this year’s sojourn begins with one of, if not the most, infamous case in the annals of SCOTUS jurisprudence, Dred Scott v. Sandford, 60 U.S. 19 (1856). Reading Dred Scott, I am reminded of something lawyers often give a nod to: When a court wants to come to a decision, where the law, public policy, or common, moral decency suggests an opposite decision or a decision, generally, the Opinions are long.* For example, Dred Scott is more than 160 pages (including dissents and footnotes) if you read it on a regular True-Type font at 11 points. *Sometimes, the Opinion\’s author agrees with the minority but for other reasons, will side with the majority, which also results in a lengthy, legalesy, treatise. How J. Taney wanted to be right in presenting the answer “no” to the following issue: “whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word \”citizen\” is used in the Constitution of the United States,” and thus, the length of his Opinion. Query: If the right to vote is a hallmark of citizenry, how long was Shelby County v. Holder, decided in 2013? Answer: Sixteen pages; just consider Shelby County an end note to Dred Scott.
Love Knows No Discrimination… aka Marriage Equality Snakes Pt 3
In the springing steps of new love, newlyweddedness, and newborns, we become absorbed with, like my spouse likes to say, the “bubble and squeak” of it all. And as the bubbles grow fewer and the squeakiness turns to creakiness in the golden and platinum years, we start to plan our farewells and what that should look like in honor of our loving relationships. That planning is sometimes truncated by accelerated medical challenges but more often than not, the planning is executed without much challenge. Loved ones are able to celebrate the dearly departed in dignity and honor and friends and family join in the celebration and do what they can to console and uplift the grieving. That is, this is the farewell achievable for couples who resemble couples of 40 years ago. For LGBTQ couples, who are even lawfully married, post Obergefell, planning farewells is often not that easy. The heartbreaking story of Jack Zawadski and Bob Huskey illuminates this additional post-Obergefell challenge: Jack and Bob were a loving couple of more than half a century. Upon retirement, they moved from Colorado to Mississippi and were married in 2015, shortly after the Obergefell ruling. Before moving to Picayune, Mississippi, Bob was diagnosed with a cardiac condition that worsened to the point that, ultimately, during the last few years of his life, Jack became his caregiver. A year after marrying, the couple acknowledged that Bob’s death was imminent. He was eventually placed in a nursing home near the couple’s community in Picayune. So Jack could focus on his last days with Bob, John, Bob’s nephew and dear friend of the couple, took on the responsibility of searching for a funeral home that could provide services in Picayune. Services in their community meant Bob’s body would not have to be transferred far and the couple’s friends and family could focus on helping each other through the grieving period. Searching online, John found the Brewer Funeral Homes. He contacted the Funeral Home and entered into a verbal agreement with the owners, Ted and Henrietta Brewer, for their services. The parties agreed to price, logistics of signing the paperwork, transportation of the body, and disposition of remains. The Brewers told John that they just needed the nursing home to contact them when Bob died and everything would be properly handled. The funeral home’s paperwork required the signature of next of kin. Bob died and Jack signed the paperwork as surviving spouse. When the Brewers received the paperwork indicating Jack was next of kin as surviving spouse, that they would be servicing a gay couple, they absolutely refused to provide the agreed upon services. John eventually found services 90 miles away. However, Bob’s body had to be moved from the nursing home before that service was available, so another funeral home was required to be involved to “hold” the body. Furthermore, because everything was last minute and far away, friends from Picayune couldn’t attend the services. Needless to say, this is not what Jack and Bob had wanted. So Jack and John sued the funeral home, alleging Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Breach of Contract, and Negligent Misrepresentation. Unfortunately, Jack died in December of 2017 and a petition was filed to substitute John as a plaintiff. Then Masterpiece Cakeshop was decided… However, another case was decided a few days after Masterpiece Cakeshop that may have truncated its reach and another legislative attempt to undermine the rights of LGBTQ families was recently thwarted. So, more to come. For now, we hope that people realize that estate planning isn’t just about getting valid instruments in order, especially if your family doesn’t resemble the other 80% of American families. This is the third part of a series, Marriage Equality Snakes, examining jurisprudence that undermines the rights of LGBTQ couples to marry and have families. Part 1 ~ Part 2
So Like, What Is It with Using Children? AKA Snakes Pt. 2
Continuing our examination of challenges to marriage equality, let’s consider the D.C. case, Marouf v. Azar, where the issue is whether the federal government, on the basis of religious freedom, violated the Constitution by using taxpayer dollars to fund services that discriminated against lawfully married persons. Two lesbian, married couples, and federal taxpayers have challenged the federal government because part of their tax payments (actually part of all U.S. taxpayers\’ dollars) is used to fund programs that discriminate against them with respect to adoption and foster parenting. Most readers probably know by now, because of recent events, that the federal government provides care to refugee children who reach the U.S. without a parent or legal guardian; the care is provided via the Unaccompanied Refugee Minor Program. The government further provides assistance to children who arrive without a parent or legal guardian and have no legal status through the Unaccompanied Children program. Homeland Security initially seizes children in both programs and transfers them to the Office of Refugee Resettlement program (ORR), which is governed by the U.S. Health and Human Services Department (HHS). ORR then places the children in foster homes or with adoptive parents and provides other care through religious organizations such as the organization at issue in this case, the United States Conference of Catholic Bishops (USCCB). The USCCB openly denounces LGBTQ persons and families because of the organization’s religious doctrine and clearly provides this denunciation in its application for funding from the federal government. Yet, ORR provides grants comprised of taxpayer dollars to the USCCB despite the organization\’s discriminatory policy and, in so doing, violates its parent agency’s – HHS’s – grantmaking rules because HHS follows the law settled by Windsor and Obergefell. One couple, Fatma Marouf and Bryn Esplin, and filed a lawsuit based on these facts after they tried to apply for adoption through USCCB and, during a telephone interview, were denied the opportunity to continue the application process. Fatma and Bryn were told that they were unsuitable because their family did not “mirror the holy family” and thus, were unqualified to foster parent or adopt. In response to this clear discrimination by an organization funded by the federal government, as of February 2018, Fatma and Bryn are seeking redress alleged violations of their rights under the Establishment Clause, the Equal Protection Clause of the Fifth Amendment, and the Substantive Due Process Clause under the Fifth Amendment. Really…what is it with keeping children from being loved by lawfully, married couples?
The Snakes Surrounding Marriage Equality, Pt. 1
We would usually post a rainbow or something uplifting for PRIDE, but this month, we\’ll leave rainbows for the parade… Because, ironically, as we celebrate PRIDE 2018, the LGBTQ community is facing an erosion of rights established by long and hard-won battles. So, as I join the community in celebration, I also underscore the “not quite” response I gave to colleagues, who, when Obergefell v. Hodges was decided, quipped that the LGBTQ community\’s issues with respect to discrimination were primarily over. Like so many groups that continue fighting discrimination – explicit and implicit, the LGBTQ community will score one victory against the venomous discrimination snake just to see the head of another emerging from its hole. Furthermore, because several respected institutions that once stood for “justice for all” are now politicized and fractured, I recently shared analyses of the marriage equality jurisprudence post Obergefell to emphasize that discrimination against LGBTQ families and individuals is still rampant: Post Obergefell Challenges: First Amendment Constitutional Claims When I first read the Masterpiece Cakeshop pleadings, the short hairs on the back of my neck stood up. And as I presented this case the morning of June 4, lightning struck those hairs as my concerns, unfortunately were shown to be well-founded. The issue in Masterpiece Cakeshop, Inc. v. Craig and Mullins was whether an exception in Colorado law prohibiting sexual orientation discrimination could be made because of a business owner’s religious beliefs. That discrimination against customers should be illegal is a no-brainer, right? Well… Jack Phillips, owner of Masterpiece Cakeshop, refused to make cakes for LGBT couples because of his religious beliefs. LGBTQ couples filed a complaint against Phillips with the Colorado Civil Rights Commission, arguing that Phillips’s refusal to bake cakes for the LGBTQ community violated Colorado’s state law that prohibits discriminatory action based on sexual orientation. Phillips’s response was audacious: Instead of denying his actions were discriminatory, he asked that his behavior as a business owner in the marketplace be excused because his business was small and too inconsequential for the State to be concerned with. Phillips’ overall contention amounted to a legal, ‘so what?’ The couples disagreed with Phillips’s minimalist argument, responding that (1) the discriminatory action has been illegal since the 1960s; and (2) Phillips’s religious beliefs could not be allowed as a basis to create an exception because the history of intolerance based on religion illuminates the horror such unfettered intolerance has wrought. The Commission found in favor of the couples. Score one for the good guys. Phillips, of course, appealed. On appeal, the couples’ brief explained how debate has continued regarding religious beliefs and discriminatory action but the law was clear: Action such as Phillips’s was illegal in the marketplace. Also, Phillips’s contention the State’s interest was marginal was bunk because Colorado has thousands of LGBTQ residents and families, despite the fact that Colorado has a storied history with respect to its discrimination against the LGBTQ community. Yet, even setting that fact aside for the sake of argument, the additional fact that the commercial marketplace must be open to all, free of discrimination, still remains. Business owners’ religious beliefs should not determine the sales strategy of a for profit, commercial enterprise. To allow such discriminatory action would undo more than 50 years of precedence. The Colorado Appellate Court agreed. Score two for the good guys. However, one could already see the snake tracks of discrimination heading toward LGBTQ rights after the Hobby Lobby decision was announced in light of Windsor. In Burwell v. Hobby Lobby Stores Inc., the U.S. Supreme Court examined 2 for-profit, closely-held corporations’ claims that the Religious Freedom Reformation Act’s mandate to provide healthcare, including access to contraceptives, violated the corporations’ First Amendment and statutory rights to freedom of religion by forcing them to provide health insurance coverage for abortion-inducing drugs and devices, and related education and counseling. The Court, taking a bite at women’s reproductive rights – or more broadly, individual rights – ruled in favor of the corporations. The Roberts Court is becoming known for its narrowly drawn Opinions, such as the Hobby Lobby decision, addressing one part of a case, while ignoring another. So, when deliberating Masterpiece Cakeshop, the Court’s majority, as I feared, slid in discrimination, couched in religious freedom, by focusing not on the Appellate Court\’s review but on the Colorado Commission’s hearing. During the Commission’s hearing, hearing officers deliberated aloud, indicating they held a bias in favor of business persons keeping their religious feelings to themselves when serving the public in commercial settings, comments that the Court reasoned undermined Phillips’s Due Process rights. Remarkable! Phillips admitted he discriminated and so what; hearing officers rebuke this lack of respect for equality that is – or was – the law; and the U.S. Supreme Court glides past the fact that the Appellate Court’s decision was reviewed according to all the facts and law notwithstanding the Commission’s hearing, used the hearing officers’ vocal comments made in a public hearing, comments steeped in a half-century of law, to actually weaken that half-century jurisprudence. The day Masterpiece Cakeshop’s ruling was announced, legal analysts shouted over the airwaves that the decision was not very meaningful because it was decided narrowly. However, Plessy v. Ferguson was also decided on narrow grounds and has yet to be expressly overturned. Also, as Justice Harlan explained in his dissent in Plessy, the U.S. Supreme Court is the final arbiter of American law and its rulings, broad or narrow, affect laws and public policies for decades if not centuries. The majority Opinion also slipped in a state’s rights argument allowing for “outcomes for cases like this” to be decided by other courts, thereby creating a vein through which discriminatory, poisonous actions can run through our country with little impediment or cure. And so marches for equality must continue until celebrations can be fully enjoyed, without fear of snakes paralyzing equality jurisprudence. Snakes, Pt. 2 – About the Children…