Power of Attorney Law, Foster Care Youth During COVID: Recently Enacted Legislation

Changes to Power of Attorney Law and Forms

Legislation was signed into law by Governor Cuomo amending the NYS General Obligations Law related to power of attorney law and forms. This bill was proposed by the New York State Bar Association and supported by the City Bar’s Legal Problems of the Aging Committee and the Trusts, Estates & Surrogate’s Courts Committee. Under the new law, the standard of “strict adherence” when completing the Statutory Short Form Power of Attorney and Statutory Gifts Rider would be changed to one of “substantial conformity.” Under the current standard, relatively minor and insignificant errors can invalidate the whole document, which is discovered and particularly damaging when the principal suffers an incapacity. The legislation would also make execution of the POA and SGR easier by merging them into one, simplified form. Moreover, the legislation addresses the too-common occurrence of third parties refusing to honor valid POA or SGR forms. It contains a provision allowing courts to award attorney’s fees when the court determines that a third party unreasonably refused to accept a valid POA or SGR form. It also formalizes procedures whereby a third party can reject the forms, including procedures to request an opinion of counsel. While the Governor signed the bill, he has requested chapter amendments be made next session intended to ensure that elderly and disabled populations are protected from fraud and abuse and to exempt the Department of Health, including social services districts, from the requirement that  third-parties accept or reject a POA form within 10-business-days to alleviate any difficulty with processing Medicaid applications (which often come with a POA form) within that time frame.

Allowing Foster Care Youth to Re-enter Foster Care During the COVID-19 Pandemic

Under a new law supported by the Family Court and Family Law Committee, Children and the Law Committee and Council on Children, former foster care youth who have been discharged from the foster care system will have the ability to re-enter without submitting a motion to the family court during a state of emergency put in place due to the COVID-19 pandemic. Youth who leave foster care prematurely during the pandemic are more likely to need and receive costly services from other state-funded government support systems (such as public assistance and the shelter system) for longer periods of time. The small investment in continuing foster care for these youth until they are able to obtain permanent housing and a stable source of income is more than off-set by the expenses that would be incurred if they were prematurely discharged and forced to rely on other systems for survival. While the bill will go into effect immediately, the Governor has requested chapter amendments to address technical issues that could jeopardize federal funding if not corrected.