A Power of Attorney in New York is provided by the statutory provisions in Title 15 of the General Obligations Law (GOL Sec. 5-1501 et. seq). A Power of Attorney (“POA”) can be a very useful estate planning document during life by providing a means by which a person can delegate property management authority to an agent to be used in the event of disability or incapacity. Section 15-1501A of the GOL provides that a POA is considered to be durable and that it is not revoked or terminated if the principal becomes incapacitated.
There are numerous cases where an agent has abused his authority under a POA. Article 81 Guardianship proceedings often involve issues regarding the validity and proper use of a POA. Similarly, these types of issues can arise during the course of estate settlement. After an executor or administrator is appointed for a decedent’s estate the fiduciary may discover that someone improperly utilized a POA during the decedent’s lifetime. When this occurs estate litigation is commenced by the fiduciary to recover the decedent’s assets that were wrongfully taken or transferred by the use of the POA.
A recent case decided by Manhattan Surrogate Nora Anderson on May 22, 2014 provides a good example of such a situation. In Estate of Ramirez the New York County Public Administrator was appointed as the temporary administrator of the decedent’s estate. The administrator discovered that shortly before the death of the decedent, the decedent’s long time friend used a POA to transfer his real estate to the friend’s son. The Administrator commenced an estate litigation proceeding to void the deed. After reviewing the facts involved, the Surrogate determined that the friend, as agent, did not have the authority pursuant to the terms of the POA to gift the real estate. Thus, the deed was voided by the Court.
I have represented clients in numerous Guardianship and Surrogate’s Court proceedings concerning the use of a POA and to recover assets improperly transferred from a decedent or incapacitated person.
A POA can be essential as a part of an overall estate plan. However, it is important to make sure that the person appointed as agent is trustworthy and that his power and authority with regard to gift giving and other property dispositions is clearly spelled out.
New York City Trusts and Estates Lawyer Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. He is available to help residents in many areas, including Brooklyn and New York counties. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation or e-mail me at jules.haas@verizon.net
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