A guide to making a New York State power of attorney

This article reflects the recent changes to New York’s statutory short form power of attorney, which affect POAs created on or after June 13, 2021. If you executed a POA before this date, it’s still valid. But you may want to consider making a new one using the new form.

What is a power of attorney?

A power of attorney, or POA, is a legal document that lets you grant another person the authority to make important medical or financial decisions on your behalf. This person is called your agent, and you, the creator of the POA, are called the principal.

In New York (and every other state), you don’t need to hire a lawyer to create your power of attorney. You can do it yourself, saving you time and money. As long as you follow New York’s requirements, any POA you create is just as legal as one drafted by a lawyer.

As of June 13, 2021, the state of New York updated its laws to make the creation of a statutory short form POA (a.k.a., a financial POA) more intuitive. And with the help of free power of attorney forms, it’s easier than ever to create a New York POA that reflects your wishes.

Refresher: What is a power of attorney, and why do I need one?

Types of powers of attorney

New York recognizes several types of POAs. Each one serves a specific purpose and gives your agent distinct powers. You’ll want to choose one that’s the best fit for your situation. Here are some options:

1. Durable power of attorney

When a power of attorney is “durable,” it means your agent’s authority continues if you’re incapacitated — for example, if you were in a coma. Durable POAs are used for estate planning, because you’re preparing for a situation where you may not be able to communicate important decisions on your own. If your POA isn’t durable, your agent’s power to act ends if you become incapacitated.

In the state of New York, all POAs are durable by default unless you specifically state otherwise in your POA document. Even so, it’s a good idea to include a statement in your POA that you want your POA to be durable. For example, New York’s statutory short form POA includes this language: “This Power of Attorney shall not be affected by my subsequent incapacity unless I have stated otherwise.”

If your power of attorney isn’t durable, your agent’s power to act ends if you become incapacitated.

2. Statutory power of attorney / financial power of attorney

In New York, you can use a statutory POA to give your agent authority to handle your financial and business matters. For example, you can give your agent the power to pay your bills, file your taxes, sell your real estate property, and more. This type of POA is often called a financial power of attorney.

A statutory power of attorney doesn’t let your agent make healthcare decisions for you. In New York, those decision rights are covered by a health care proxy. However, your agent can make financial decisions about the cost and payment of your medical care.

When making a statutory power of attorney, New York residents can use New York’s statutory short form power of attorney. This “short form” is a template created by the New York state government that residents can use for free. It’s usually a good idea to use the short form POA, because it’s easier for banks and other institutions to recognize.

As of June 13, 2021, the state of New York revised its statutory short form POA to make it easier to use. Here are some of the most impactful changes:

• There’s no longer an exact wording requirement. Previously, if New Yorkers wanted to create a statutory short form POA, they needed to use the exact words provided in the statute. If they didn’t, the POA may have been rejected. Even a typo or change in font size may have been a reason to reject the document. Now, that rule has been relaxed. A statutory POA should still closely follow the language outlined in the statute, but it can deviate slightly and still be valid.
• The decisions your agent can make about your healthcare costs are better defined. Before June 2021, it wasn’t clear how much power you could give your agent over your healthcare-related financial decisions. Under the new law, your agent is considered a personal representative when it comes to your healthcare costs. For example, they can access your healthcare billing records to check for inaccuracies.
• Your agent can now make gifts of up to $5,000 a year to support your family and personal needs. Previously, your agent could only give up to $500 a year under the statutory short form POA. If you have family members that rely on you for financial support, $500 likely wouldn’t be enough to cover their needs for a year. To allow your agent to give more under the old law, you would need to fill out a Statutory Gifts Rider. This was an extra document that would supplement your POA. Now, your agent can give up to $5,000 of your cash each year to support your spouse, children, parents, and other family members, without filling out a separate form. If your family needs more than $5,000 a year, you can give your agent permission to give them more by writing those instructions in your POA.

3. Health care proxy

A health care proxy lets you give someone, called your “health care agent,” the authority to make healthcare decisions for you if you’re unable to make them yourself. These decisions could be about your treatment options, medication, surgery, end-of-life care, and more. A health care proxy is sometimes called a medical power of attorney or health care power of attorney.

In New York, your health care proxy needs to be signed by you and two witnesses (your chosen agent can’t be a witness). Unlike other types of POAs, you don’t need to have your health care proxy notarized.

You can access New York’s health care proxy form on the New York State Department of Health’s website. You can also use free online software to quickly create a health care proxy tailored to your wishes.

New York power of attorney requirements

To make a New York POA, you must:

• Be at least 18 years old.
• Have mental "capacity," meaning you have the ability to comprehend the nature and consequences of making a POA.
• Type or write your POA in a legible font. If you’re typing, don’t use anything smaller than 12 point font size.
• Sign and date your POA in the presence of two witnesses, and have it notarized. In New York, your notary can also serve as one of your witnesses. (Remember, if you’re making a health care proxy, you only need witness signatures — not a notary.)
• Have your chosen agent sign and date your POA. If you’re creating a New York statutory power of attorney, have their signature notarized. Your agent doesn’t have to sign your POA at the same time you do — but they will have to sign before they’re able to act as your agent.

To avoid a conflict of interest, a beneficiary of your estate shouldn’t witness your POA. (This includes your spouse, children, or anyone you’ve named in your last will and testament.) Your agent also can’t be a witness, although they’re still required to sign your POA to accept their authority.

Once you create a power of attorney, it’s a good idea to give a copy to your agent and tell them about your expectations. They’ll have to present the POA to appropriate authorities (like your bank or hospital) to prove they have the authority to make decisions on your behalf.

Who can serve as your agent in New York?

According to New York law, your POA agent can be anyone who is at least 18 years old and has mental capacity. Your agent doesn’t have to be a lawyer — in fact, most people don’t choose a lawyer to be their agent. You can nominate a family member, close friend, business partner, or anyone you trust to act in your best interests.

By law, your agent is required to:

• Follow the instructions you’ve outlined in your POA
• Act in your best interests
• Keep your property separate from their own
• Disclose their relationship as your agent whenever they sign on your behalf
• Keep receipts for all payments and transactions they make on your behalf

If you have a power of attorney, do you still need a will?

Yes, estate planning professionals agree that you should have both a will and a POA. These documents serve different purposes. Your last will and testament outlines how you want your property distributed after you die. Your POA covers important decisions that have to be made during your lifetime in the event you become ill or injured.

How to make a New York power of attorney

Here are the basic steps to make your New York power of attorney:

1. Decide which type of power of attorney to make. If you’re using your POA for estate planning purposes, consider a statutory POA for your finances and a health care proxy for your healthcare preferences.
2. Decide who you want to be your agent. You should speak to this person beforehand and make sure they’re willing to serve as your agent. They don’t have to accept the position as your agent just because you nominated them. Your agent also needs to sign your POA document before they’re able to act.
3. Decide what authority you want to give your agent. What financial or medical decisions do you want them to be responsible for managing on your behalf?
4. Get a power of attorney form. The state of New York provides both a statutory short form power of attorney and a health care proxy form for residents to use. Another option is to use a self-help estate planning platform, like FreeWill, to create your free durable power of attorney or living will (which includes a health care proxy).
5. Complete the form, sign it, and have it witnessed and notarized. Your witnesses can’t be your agent or anyone who stands to inherit something from you when you die.
6. Consider giving a copy of your POA form to your agent and other interested parties, like your bank and medical office.
7. Keep your POA forms in a safe place with your other estate planning documents.
8. Keep your POA updated as your circumstances change. It’s a good idea to review your documents every three to five years. If you change your POA, you should give an updated copy to all parties who have your previous POA on file.

A power of attorney creates peace of mind

If you’re ready to create your power of attorney but aren’t sure where to begin, FreeWill can help. First, choose a document type: either a New York durable statutory short form POA, or a New York living will, which includes a health care proxy. Then complete the questionnaire, and you’ll receive a document based on the information you’ve entered — completely free. We also include instructions for how to execute your documents to make them valid under New York law.

Create a New York durable statutory power of attorney

Create a New York living will (which includes a health care proxy)

Everyone’s situation is unique, so if you have any questions or concerns about your power of attorney, consider meeting with an estate attorney.