What if you are given a Power of Attorney and asked to accept the agent’s authority?
Even if the POA does not follow the statutory form, you can still agree to the agent’s authority. Non-statutory POA agency relationships are created all the time for specific purposes (real estate agent contracts come to mind). The POA law is designed to prevent the third party from denying the agent’s authority, not to stop the third party from accepting the agent’s authority unless the forms are completed perfectly.
However, what if you do not want to accept the agent’s authority? Use the following chart to determine whether denying the agent’s authority will end with you paying the agent’s attorney’s fees. If the answer to any of these questions is no, you do not have to accept the POA, and should follow the procedure for rejecting a POA outlined on page 6.
|Is the Power of Attorney Valid?||YES||NO|
|Has the agent presented the original or an attorney certified power of attorney?|
|Is the power of attorney legible and the writing at least as large as the font used for this checklist?|
|Is it signed by the principal in front of a Notary Public with the proper acknowledgement language and Notary signature?|
|Have two witnesses attested that the document was signed in front of them? It is ok if one of the witnesses is also the notary.|
|Is it signed by the Agent asserting authority in front of a Notary Public with the proper acknowledgement language and Notary signature?|
|Does the Power of Attorney include the “Caution to the Principal Warning” somewhere in the document?|
|Does the Power of Attorney include the “Important Information for the Agent” language somewhere in the document?|
|Check the Modifications Section: Is this Power of Attorney currently in force? (It may not be in effect until a future event occurs, or if not durable, is no longer effective if the Principal is incompetent)|
|Has the principal initialed the specific grant of authority the agent is attempting to use? Or, has the principal initialed the final line authorizing all powers?|
|Has the Power of Attorney been altered using white out, cross outs, or additions?|
If the answer to all the above questions, other than the final question, which should be no, is yes, it is likely that the agent has a valid statutory POA. If there is a question about the agent’s authority to take a particular action, you can request and rely on an opinion of counsel regarding the extent of the agent’s authority. You will not be held liable for improper actions by the agent if this procedure is followed.
When is it reasonable to reject a valid Power of Attorney?
(NY GOL §5-1504(2))
The following list provides some reasons you can reject a valid POA and will not be responsible for the agent’s attorney’s fees:
- The agent did not show you the original power of attorney or an attorney certified copy of the power of attorney.
- You make a report to adult protective services about the principal and agent, or you know there has been a report to adult protective services about abuse, neglect, exploitation, or abandonment of the principal by the agent or people working with the agent.
- You know or have a reasonable basis to suspect that the principal died. A POA is only valid while the principal is alive.
- You know or have a reasonable basis to suspect that the principal is currently incapacitated and the POA is non-durable.
- You know or have a reasonable basis to suspect that the principal was incapacitated when he or she executed the power of attorney.
- You know or have a reasonable basis to suspect that the principal executed the POA due to fraud, duress, or undue influence.
- You received notice of the termination or revocation of the agent’s authority from the principal in one of the manners outlined on page 8.
- The agent refused to provide an agent’s certification or an opinion of counsel.
If you choose to reject an agent’s authority for one of these reasons, you must still follow the procedure outlined on page 6 for rejection. Include the reason you rejected the agent’s authority in the written response and provide your evidence. If the agent begins a special proceeding, you want the written record to show that your rejection was reasonable.
When is it unreasonable to reject a valid Power of Attorney?
(NY GOL §5-1504(2)(b))
Finally, there are some reasons for rejection of a valid POA that are considered unreasonable. They include:
- Requiring your own custom POA form to be signed by the principal.
- Requiring the POA to have been signed recently or within some previous time frame.
- The principal and agent signed the POA on different dates.
- Requiring the new statutory POA if the POA was in the valid statutory form at the time it was executed.
If your only reason for rejecting the POA is on this list, you will be paying the agent’s attorney fee in court. However, if your reason for rejecting the POA is not on either of the above lists, it will be up to the Judge’s discretion to determine if you acted reasonably or unreasonably, and if you must pay the agent’s attorney’s fees.