N.Y.
General Obligations Law Section 5-1504
Acceptance of and reliance upon acknowledged and witnessed statutory short form power of attorney
1.
(a) For purposes of this section, “acknowledged” means purportedly verified before a notary public or other individual authorized to take acknowledgements. For purposes of this section, “witnessed” means purportedly witnessed by two persons who are not named in the instrument as agents or as permissible recipients of gifts.(b)
A person that in good faith accepts an acknowledged and witnessed power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption that the signature is genuine.(c)
A person that in good faith accepts an acknowledged and witnessed power of attorney without actual knowledge that the power of attorney is void, invalid, or terminated, that the purported agent’s authority is void, invalid, or terminated, or that the agent is exceeding or improperly exercising the agent’s authority may rely upon the power of attorney as if the power of attorney were genuine, valid and still in effect, the agent’s authority were genuine, valid and still in effect, and the agent had not exceeded and had properly exercised the authority.(d)
A person that is asked to accept an acknowledged and witnessed power of attorney may request, and rely upon, without further investigation:(1)
an agent’s certification under penalty of perjury of any factual matter concerning the principal, agent or power of attorney; and(2)
an opinion of counsel as to any matter of law concerning the power of attorney if the person making the request provides in a writing or other record the reason for the request.(e)
An opinion of counsel requested under this section must be provided at the principal’s expense unless the request is made more than ten business days after the power of attorney is presented for acceptance.(f)
For purposes of this section, a person that conducts activities through employees is without actual knowledge of a fact relating to a power of attorney, a principal, or an agent if the employee conducting the transaction involving the power of attorney is without actual knowledge of the fact after making reasonable inquiry with respect thereto.2.
No third party located or doing business in this state shall refuse, without reasonable cause, to honor a statutory short form power of attorney properly executed in accordance with § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title, or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution.(a)
Reasonable cause under this subdivision shall include, but not be limited to:(1)
the refusal by the agent to provide an original power of attorney or a copy certified by an attorney pursuant to Civil Practice Law & Rules Law § 2105 (Certification by attorney)section twenty-one hundred five of the civil practice law and rules, or by a court or other government entity;(2)
the third party’s good faith referral of the principal and the agent or a person acting for or with the agent to the local adult protective services unit;(3)
actual knowledge of a report having been made by any person to the local adult protective services unit alleging physical or financial abuse, neglect, exploitation or abandonment of the principal by the agent or a person acting for or with the agent;(4)
actual knowledge of the principal’s death or a reasonable basis for believing the principal has died;(5)
actual knowledge of the incapacity of the principal or a reasonable basis for believing that the principal is incapacitated where the power of attorney tendered is a nondurable power of attorney;(6)
actual knowledge or a reasonable basis for believing that the principal was incapacitated at the time the power of attorney was executed;(7)
actual knowledge or a reasonable basis for believing that the power of attorney was procured through fraud, duress or undue influence;(8)
actual notice, pursuant to subdivision five of this section, of the termination or revocation of the power of attorney;(9)
the refusal by a title insurance company to underwrite title insurance for a gift of real property made pursuant to a statutory short form power of attorney or non-statutory power of attorney that does not contain express instructions or purposes of the principal with respect to gifts in the modifications section of the statutory short form power of attorney or in the non-statutory power of attorney; or(10)
the refusal of a request for a certification or an opinion of counsel under paragraph (d) of subdivision one of this section.(b)
It shall be deemed unreasonable for a third party to refuse to honor a statutory short form power of attorney properly executed in accordance with § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution, if the only reason for the refusal is any of the following:(1)
the power of attorney is not on a form prescribed by the third party to whom the power of attorney is presented.(2)
there has been a lapse of time since the execution of the power of attorney.(3)
on the face of the statutory short form power of attorney, there is a lapse of time between the date of acknowledgment of the signature of the principal and the date of acknowledgment of the signature of any agent.3.
(a) Not later than the tenth business day after presentation of an original or attorney certified copy of a statutory short form power of attorney properly executed in accordance with § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title or in accordance with the laws in effect at the time of its execution to a third party for acceptance, such third party shall either (a) honor the statutory short form power of attorney, or(b)
reject the statutory short form power of attorney in a writing that sets forth the reasons for such rejection, which writing shall be sent to the principal and the agent at the addresses on the power of attorney and such other addresses as provided by the principal or the agent, or(c)
request the agent to execute an acknowledged affidavit pursuant to subdivision seven of this section stating that the power of attorney is in full force and effect if the statutory short form power of attorney was not submitted for acceptance together with such an acknowledged affidavit. Such reasons for rejection may include, but not be limited to non-conforming form, missing or wrong signature, invalid notarization, or unacceptable identification. In the event that the statutory short form power of attorney presented is not an original or attorney certified copy, as part of the initial rejection, such short form power of attorney may be rejected for such reason, provided, however, in explaining the reason for rejecting the short form power of attorney, the third party shall also identify such other provisions of the short form power of attorney, if any, that would otherwise constitute cause for rejection of the statutory short form power of attorney. If the third party initially rejects the statutory short form power of attorney in a writing that sets forth the reasons for such rejection, the third party shall within seven business days after receipt of a writing in response to the reasons for such rejection (i) honor the statutory short form power of attorney, or(ii)
finally reject the statutory short form power of attorney in a writing that sets forth the reasons for such rejection. Such writing shall be sent to the address provided on the power of attorney, to the address of the agent, if any, and may also be sent to such other address as shall be provided on the account documents, or to the address of the attorney as provided in an opinion of counsel pursuant to this section. If the third party requests the agent to execute such an acknowledged affidavit, the third party shall honor such statutory short form power of attorney within seven business days after receipt by the third party of an acknowledged affidavit which complies with the provisions of subdivision seven of this section, stating that the power of attorney is in full force and effect unless reasonable cause exists as described in paragraph (a) of subdivision two of this section. For the purposes of this subdivision, notice shall be considered delivered at the time such notice is mailed and the time requirements in which to honor or reject the statutory short form power of attorney or request the agent to execute an acknowledged affidavit shall not apply to the department of audit and control, a public retirement system of the state as defined in subdivision six of Retirement & Social Security Law § 152 (Definitions)section one hundred fifty-two of the retirement and social security law, or the department of health, including social services districts, in the administration of the medical assistance “Medicaid” program pursuant to title XIX of the federal social security act or other public health insurance programs.(b)
Notice to the agent as required by paragraph (a) of this subdivision shall not be sent until after a determination is made by adult protective services if the reason for rejection is a reason set forth in subdivision two of this section and is otherwise prohibited by law or regulation.4.
(a) Once reasonably accepted, if a third party conducts a transaction in reliance on a properly executed statutory short form power of attorney, the third party shall be held harmless from liability for the transaction.(b)
Except as provided in subdivision five of this section, it shall be deemed unlawful for a third party to unreasonably refuse to honor a properly executed statutory short form power of attorney executed in accordance with § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution. If a special proceeding as authorized by § 5-1510 (Special proceedings)section 5-1510 of this title is brought to compel the third party to honor the statutory short form power of attorney, the court may award damages, including reasonable attorney’s fees and costs, if the court finds that the third party acted unreasonably in refusing to honor the agent’s authority under the statutory short form power of attorney. Such special proceeding shall be the exclusive remedy for a violation of this section.5.
In the absence of actual knowledge that the principal lacked capacity to execute a statutory short form power of attorney or that the statutory short form power of attorney was procured through fraud, duress or undue influence, no third party receiving and retaining a statutory short form power of attorney properly executed in accordance with § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title, or a statutory short form power of attorney properly executed in accordance with the laws in effect at the time of its execution, or a complete photostatic copy of the properly executed original thereof, nor any officer, agent, attorney-in-fact or employee of such third party shall incur any liability by reason of acting upon the authority thereof unless the third party shall have received actual notice of the revocation or termination of such power of attorney. If a principal maintains an account at a financial institution, the financial institution is deemed to have actual notice after it has had a reasonable opportunity to act on a written notice of the revocation or termination following its receipt of the same at its office where such account is located.6.
If the application of the provisions of subdivision two or four of this section shall be held invalid to any third party the application of such provisions to any third party other than those to which it is held invalid, shall not be affected thereby.7.
When the power of attorney is presented to a third party, it shall not be deemed unreasonable for a third party to require the agent to execute an acknowledged affidavit pursuant to this subdivision stating that the power of attorney is in full force and effect. Such an affidavit is conclusive proof to the third party relying on the power of attorney that the power of attorney is valid and effective, and has not been terminated, revoked or modified, except as to any third party who had actual notice that the power of attorney had terminated, been revoked or been modified prior to the execution of the affidavit. Such affidavit shall state that:(a)
the agent does not have, at the time of the transaction, actual notice of the termination or revocation of the power of attorney, or notice of any facts indicating that the power of attorney has been terminated or revoked;(b)
the agent does not have, at the time of the transaction, actual notice that the power of attorney has been modified in any way that would affect the ability of the agent to authorize or engage in the transaction, or notice of any facts indicating that the power of attorney has been so modified;(c)
if the agent was named as a successor agent, the prior agent is no longer able or willing to serve; and(d)
if the agent has been the principal’s spouse, the power of attorney expressly provides that divorce or annulment as defined in subparagraph two of paragraph (f) of section 5-1.4 of the estates, powers and trusts law does not terminate the agent’s authority thereunder, or the agent does not have actual notice that the marriage has been terminated by divorce or annulment as defined in subparagraph two of paragraph (f) of section 5-1.4 of the estates, powers and trusts law at the time of the transaction.8.
Nothing in this section shall require the acceptance of a form that is not a statutory short form power of attorney.9.
A statutory short form power of attorney or a non-statutory power of attorney that meets the requirements of subdivision one of § 5-1501B (Creation of a valid power of attorney)section 5-1501B of this title shall be accepted for recording so long as it has been signed by one agent named therein whose signature has been acknowledged. If two or more agents acting on behalf of the principal are required to act together, the power of attorney shall be accepted for recording as long as their signatures have been acknowledged. When a successor or co-agent authorized to act separately from any other agents presents a certified copy of a recorded statutory short form power of attorney or non-statutory power of attorney with the agent’s signature acknowledged, the instrument shall be accepted for recording.
Source:
Section 5-1504 — Acceptance of and reliance upon acknowledged and witnessed statutory short form power of attorney, https://www.nysenate.gov/legislation/laws/GOB/5-1504 (updated Jun. 18, 2021; accessed Oct. 26, 2024).
