If you managed to convince someone to watch your little ones, while you secure yourself some much needed adult time, first of all, Congrats!  Secondly, you should execute a temporary POA, which is effective for up to 6 months in New York.

What should you include

In the event of a medical emergency, specify all authorized forms of treatment, as well as treatments that are not authorized.  If your children are minors and school-aged, the POA will permit a temporary designee to make educational decisions.  Your temporary agent will need to present the POA to school officials or health care providers, upon request.

Single Parents

If a court of law has determined that both parents should equally share in the parental responsibilities including educational or health decisions, a temporary POA, in favor of another person will not be valid, unless both parents have consented to the temporary relationship.  NY GOL §5-1551.

Small Business Owners

You should execute a temporary POA to allow another person to make emergency financial decisions (i.e. bank account withdrawals) for your business,  during your absence.

Conclusion

Last piece of advice parents, RELAX! Your little darlings are probably doing whatever their little hearts desire.  That’s right folks, that includes jumping on furniture, eating loads of candy, staying up late… you get the picture. Regardless, it’s a small price to pay for a little piece of mind.  Ahhh, a girl can always dream.

In conjunction with the amendments to the New York Power of Attorney, effective as of September 1st 2009, previously discussed in detail here, the New York State government enacted a mechanism for a principal to grant an agent the power to transfer gifts to a beneficiary. The New Power of Attorney controls the handling of the principal’s general affairs, while the Statutory Major Gifts Rider (SMGR) will govern the agent’s ability to gift the principal’s assets during the principal’s lifetime. The provisions governing the SMGR are set forth in NY G.O.L. §5-1514.     

Summary of the SMGR Provisions

The SMGR requires a principal to execute a separate addendum to the New York Power or Attorney, permitting an agent to transfer major gifts to spouses, children, distant descendants or gifts to other beneficiaries.  In addition to the power to make gifts, the SMGR may also empower an agent to change or create rights of survivorship or add a beneficiary designation.  Lastly, the principal is also able to give the agent the power to grant a gift to himself/herself. 

Divorce and the SMGR

If two people divorce, the marriage is annulled, dissolved or otherwise invalidated, the agent loses the ability to make a gift to a former spouse under the SMGR.  However, if the principal decides to remarry a former spouse, the agent will be re-empowered to make a major gift to the spouse.

Conclusion

The SMGR must be signed, notarized and witnessed by two disinterested people (those that do not stand to benefit from a principal’s gift).  The principal must execute the SMGR and the New Power of Attorney simultaneously.   The method of execution for a SMGR is similar to that of executing a will.  Should you require any further information about the new Power of Attorney or the Statutory Major Gifts Rider, please contact us.

On September 1st, 2009, an amended New York Power of Attorney (POA) law became effective.   The new “durable” (form remains in effect, even in the event of incapacity) POA places additional requirements on both the principal and the agent.   In fact, the agent is required to sign and date the POA along with the principal’s signature and date.  NY General Obligations Law Section 5-1501A. It has yet to be determined whether the agent and principal need to occur simultaneously.

Contract Signing

New POA and Single Parents

So, the real issue is why should single parents care? That’s easy.  As single parents, we might have given a POA to an ex-spouse.  Note: If you’ve granted a POA for yourself to an ex-spouse, effective July 7th, 2008, the POA was automatically revoked after divorce under EPTL 5-1.4.  Therefore, you should executea a new POA, immediately. 

It’s perfectly natural for married couples to execute POAs in favor of each other.  But, as single parents, that option is not available for us.  Single parents might name a parent, sibling or an older child.  Some considerations might be the age of a child or a parent.  I love my mother dearly, but, let’s face it, she’s aging.  I might want to consider someone a little closer to my own age.  Also, if you decide to choose your child, consider the child’s maturity along with his/her age.  The law states that an agent must have “capacity” which means that an agent must comprehend the ability to revoke, execute, amend or modify the POA.  NY General Obligations Law 5-1501.  Personally, my little guy is too young to consider signing anything besides the walls (my little Picasso!) But, in about 15 years, he might be a great option.

You should consider the factors mentioned and many others when executing a New POA under New York Law.  Should you have additional questions, please feel free to register on our site and we’ll be happy to help.

Stay Tuned for Part II: Statutory Major Gifts Rider (”SMGR”).