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.
A NY Roadmap for Intestate Estate Administration
Contributor: Gabby Wasenius Dealing with the loss of a loved one is never easy, and the legal process that follows can be daunting, especially if your loved one passes away intestate, i.e., without a Last Will and Testament (Will). In New York, when someone passes away without a will, their heirs must go to the Surrogate\’s Court to petition for something called \”Letters of Administration.\” These Letters grant a person, usually a close family member, the power to collect and distribute the deceased person\’s belongings. Before you can ask for Letters of Administration, you need to make sure there really is no Will. To do this, check with the Surrogate’s Court to see if a Will was filed for safekeeping, look through the deceased person\’s papers, and contact any lawyers they may have worked with. Once you are sure there is no will, you can petition the Court for Letters of Administration. Usually, the people who have the right to inherit the assets are the same people who can request to be the Administrator. The Administrator is the person who will be in charge of the estate and receive the Letters of Administration. However, not just any relative can become the Administrator. The Administrator has to be a close family member, an honest person who is not a convicted felon, bondable (someone who is insurable with decent credit), unlikely to face objections, and a U.S. citizen or a legal resident. The Court needs specific forms, details, and documents before they issue Letters of Administration. You will need an original death certificate, a paid funeral bill, and names and contact information for all potential distributees. A distributee is a person who will inherit without a Will. It is also important that you notify the Court of any special circumstances regarding the distributees (like if someone is in jail, a minor, or disabled) or if there are unknown distributees. All potential distributees must consent to the Letters of Administration and the potential Administrator or be officially notified. So, along with the petition, you must submit their agreement on a form called a Waiver. If they cannot or will not agree, you must provide a Citation for the court to issue. Additionally, any special circumstances of the distributees will require more forms and documentation and may require additional proceedings. Once the Court gives you Letters of Administration, you must collect the decedent\’s assets and belongings, pay off debts and taxes, and only then can you distribute what remains to the distributees according to New York law. While you can find the basic forms you need on the New York Office of Court Administration’s website, having an expert by your side is incredibly valuable as you deal with the complex world of New York’s Surrogate’s Court. Unexpected problems can cause delays in your request for Letters of Administration, and the points above are just the main points on the New York estate administration roadmap.
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.
Doctors v. Family — Who Decides Treatment When You Can’t
By Melissa Aristizabal An unfortunate reality in living through a pandemic is being forced to think about what directives you have in place if you cannot make decisions for yourself. A common instrument that you may have heard of in all those evening medical sitcoms (looking at you #GreysAnatomy) is a DNR or “Do Not Resuscitate Order.” So what are your options IRL (in real life)? As previously discussed, a Power of Attorney (POA) is an instrument used to appoint another individual, your “Agent,” to make legal decisions for you, the “Principal.” But, unlike in Illinois, in New York, the instrument used to make healthcare decisions on your behalf is referred to as a “Health Care Proxy.” Health Care Proxy. A Health Care Proxy gives you, the Principal, the power to appoint a competent adult as your Agent to make healthcare decisions in your best interest and in accordance with your religious preferences or moral beliefs. Your Agent only makes healthcare decisions for you when a physician determines that you are no longer able to do so, that is, you lack the mental capacity to “understand and appreciate the nature and consequences of health care decisions” or make an informed decision weighing the benefits, risks, or alternatives of the proposed treatment. When is capacity determined? An attending physician or attending nurse practitioner makes the determination and it is summarized in a writing included in the Principal’s medical records that details their opinion on what caused the Principal’s incapacity and its possible extent and duration. The Principal’s capacity is re-evaluated at the time health care decisions are taken and – if the decision to stop life-saving measures is made – another attending physician or attending nurse practitioner must also determine that the Principal lacks capacity before life-sustaining treatment is ended. But, if the Principal regains capacity at any time, the Agent’s authority to make healthcare decisions automatically ends. Benefits. Having a detailed Health Care Proxy takes the guess work out of, for instance, what risky procedures or treatment you wish to undergo or if you would like medical professionals to take heroic efforts to keep you alive. This can also keep the family discord to a minimum. Undoubtedly, stress will be high and it’s likely that there could be a disagreement among family members on what life saving measures should be taken. Be Prepared. Though it’s never fun discussing end-of-life topics, now is the best time to do so with an attorney. Thinking through what we want in a situation we hope to never encounter puts everyone in the best position to ensure our wishes are followed. Contact a New York estate planning attorney to start your planning today.
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.