Attorney At Law: The ‘power’ in a Durable Power of Attorney
By Nancy Burner Esq.
A Durable Power of Attorney is a statutory form that enables the principal (the creator of the power of attorney) to empower a trusted individual, as acting agent, to manage the finances and property during the principal’s lifetime. Having a Durable Power of Attorney in place is incredibly important, especially later in life if the principal lacks legal capacity. Even if incapacitated, the appointed agent will still be able to use the document to access bank accounts, sign checks, pay bills, and carry out any essential estate planning.
Durable Powers of Attorney in New York are governed by Title 15 of New York General Obligations Law. The statute enumerates several categories of powers that may be granted to an agent: (A) real estate transactions, (B) chattel and goods transactions, (C) bond, share, and commodity transactions, (D) banking transactions, (E) business operating transactions, (F) insurance transactions, (G) estate transactions, (H) claims and litigation, (I) personal and family maintenance, (J) government benefits, (K) financial matters related to health care, (L) retirement benefits, (M) tax matters, and (N) all other matters.
These transactions are further defined in GOL Sections 5-1502A through 5-1502N (and thus aren’t spelled out in the Power of Attorney form itself), but certain powers relating to these various transactions are limited unless expressly stated otherwise in the “Modifications” section of the form. For example, Section 5-1502D provides that the authority over “banking transactions” allows the agent to modify, terminate and make deposits to and withdrawals from any deposit account, but with respect to joint accounts, the agent cannot add a new joint owner or delete a joint owner unless such authority is expressly granted.
In addition, as to insurance transactions, Section 5-1502F provides that the agent may not change the beneficiary designations unless the Durable Power of Attorney specifically states otherwise, and under Section 5-1502L an agent similarly cannot change the designation of beneficiaries of any retirement accounts unless this authority is expressly granted. Further, Section 5-1502K gives the agent authority over health care financial matters, benefit entitlements, and payment obligations, but this authority does not include the authority to make health care decisions for the principal — this authority can only be granted by a valid Health Care Proxy.
GOL Section 5-1513 sets forth particular requirements regarding the authority of an agent over gifting transactions. If the principal grants the agent authority relating to personal and family maintenance (Section (I) of the form mentioned above), the agent may make gifts that the principal customarily made to individuals, including the agent, and charitable organizations, not exceeding $5,000 in any one calendar year. In order to authorize the agent to make gifts in excess of the $5,000 annual limit, the principal must expressly grant that authorization in a separate Modifications section, including whether the agent has the authority to make gifts to himself or herself.
While gifting is a significant power that should not be given lightly, it can be critically important in certain situations, such as Medicaid planning, where assets need to be transferred out of the principal’s name in order to meet the eligibility requirements. In order to qualify for Medicaid coverage for homecare or nursing home care in New York in 2024, an individual applicant cannot have more than $30,182 in assets. And if the applicant lacks the capacity to make the necessary asset transfers, without a Durable Power of Attorney with gifting authority, the only alternative would be for a legal guardian to be appointed by the court which is costly and time- consuming.
An experienced estate planning attorney can help explain the advantages of having a Durable Power of Attorney and prepare certain important modifications to the statutory form to better accomplish your estate planning objectives.
Nancy Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.
