Many of us have become committed members of the “Do It Yourself” crowd. Often undertaking projects yourself can provide financial savings over the cost of hiring a professional and can provide the satisfaction of completing a task yourself. Unfortunately, there are times when “Do It Yourself” can be perilous.
In September 2009 New York State amendments to the General Obligations Law took effect. A completely new Power of Attorney form was required. The new form included the option of using a Major Gifts Rider. The Law Revision Commission report on the amendments used fifty pages to describe the changes to the form and their meaning. These changes to the Power of Attorney form were widely discussed by members of the Trust & Estates Section and the Elder Law Section of the New York State Bar Association. The members’ concerns about confusion that arose due to the amendments were shared with the legislature. In September 2010 further modifications went into affect with regard to the Power of Attorney form. The Major Gifts Rider was renamed the Statutory Gifts Rider, among other new changes.
Since the General Obligations Law was amended I have consulted with potential clients who have assured me that they had a Power of Attorney making them the agent authorized to act on behalf of their parents. Several times when presented with the Power of Attorney forms I have had to point out that the signed form was no longer valid when it was completed and executed. Some of my potential clients had serious problems. In the interim their parents had lost mental capacity and could no longer understand the document or the authority that was being given. They were unable to execute the proper document. Other, more expensive and cumbersome methods of obtaining authority to act on their behalf, such as a commencing a guardianship proceeding were now necessary.
When obtaining forms online it is not always easy to know if the forms offered are up to date. In addition, while you may think that you understand the meaning of a form when you read it, the language may contain terms of art that may not be as clear as you think. In fact, hours of discussion about the various paragraphs of the forms with other attorneys in 2009 and 2010 revealed considerable differences of opinion as to the meaning of the paragraphs and the need for modifications to some of the language. This is an indication that a layman preparing this document without the assistance of counsel may not accomplish what they think they are.
The Power of Attorney is an important tool in the estate planning and elder law arsenal. It is probably better to consult a lawyer before trying to do this yourself so that you get it right the first time.
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