Power of attorney, health care directive and guardianship in New York

Financial power of attorney in New York

Law and official form

Law

New York General Obligations Law, Article 5, Title 15

Uniform Power of Attorney Act

No

Official form

Power of Attorney New York Statutory Short Form (Gen. Oblig. Law § 5-1513)Published by New York State Senate (official statute text, Open Legislation)

You do not have to use it.

You can use the statutory short form or a non-statutory power of attorney; both must meet the same signing rules and include the 'Caution to the Principal' and 'Important Information for the Agent' wording. Gifts of more than $5,000 a year in total, gifts to the agent, changes to interests in your property, and pay for the agent must be written in the Modifications section.

Law: N.Y. Gen. Oblig. Law § 5-1501 et seq; N.Y. Gen. Oblig. Law §§ 5-1501B, 5-1503, 5-1513

Signing rules

How to sign

Sign, initial and date the power of attorney before a notary public and two qualified witnesses (the notary can be one of them). Your agent then signs it before a notary before acting.

Who signs

Signed, initialed and dated by you, or in your name by another person (not your agent or successor agent) in your presence and at your direction.

Notary

Required

Witnesses

2

Who cannot witness

You need a notary acknowledgment AND two witnesses who sign in your presence. The witnesses cannot be people named in the document as agents or as people allowed to receive gifts. The notary who takes the acknowledgment may also be one of the two witnesses. Printed in letters at least 12-point size.

Agent's acknowledgment

Required. Each agent must sign and date the power of attorney with their signature acknowledged before a notary. The power of attorney takes effect as to an agent on the date that agent's signature is acknowledged.

Law: N.Y. Gen. Oblig. Law § 5-1501B

Durable and springing

Is it durable?

A New York power of attorney is durable unless it expressly says it ends if you become incapacitated.

Law: Gen. Oblig. Law § 5-1501A

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney can say it takes effect on a date or when a stated contingency happens. If it names a person to declare in writing that the contingency has occurred, that written declaration is enough. It still takes effect only after the agent's signature is acknowledged.

Law: Gen. Oblig. Law § 5-1501B(3)

What an agent can and cannot do

Needs express permission

• Gifts to the agent
• Gifts above $5,000 total per calendar year (smaller customary gifts are covered by 'personal and family maintenance')
• Other gift transactions and changes to interests in your property, such as creating or changing joint ownership or beneficiaries
• Compensation for the agent
• Revoking earlier powers of attorney

No power of attorney can

A power of attorney cannot authorize health care decisions; that requires a health care proxy.

Law: Gen. Oblig. Law § 5-1513, 'Caution to the Principal'

Law: N.Y. Gen. Oblig. Law §§ 5-1502I, 5-1503, 5-1505(2)(a)(2), 5-1506, 5-1511(6), 5-1513(g), (h)

Agent duties, pay and court review

Agent duties

• Use the care a prudent person would use with someone else's property
• Follow your instructions, or act in your best interest, and avoid conflicts of interest
• Keep your property separate from their own (with limited exceptions for joint property)
• Keep a record of all receipts, payments and transactions
• Give the record and a copy of the power of attorney within 15 days of a written request by a monitor, co-agent, successor agent, investigating government agency, court evaluator, guardian or personal representative
• Sign showing they act as agent

Agent pay

The agent is reimbursed for reasonable expenses, but gets compensation only if the power of attorney specifically provides for it.

Law: Gen. Oblig. Law § 5-1506

Asking a court to review an agent

A monitor, co-agent or successor agent, investigating government agency, court evaluator, guardian, personal representative, the agent, your spouse, child or parent, your successor in interest, or a third party asked to accept the power of attorney can bring a special proceeding to compel records, decide validity or capacity, review compensation, remove the agent, or compel acceptance. You can also name a monitor who can request the agent's records.

Law: Gen. Oblig. Law § 5-1510; Gen. Oblig. Law § 5-1509

Law: N.Y. Gen. Oblig. Law §§ 5-1505, 5-1507

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• You revoke the agent's authority, or the agent dies, becomes incapacitated or resigns, and no co-agent or successor can serve
• Its purpose is accomplished
• A court revokes it
• Your marriage to the agent ends by divorce or annulment, unless the document says otherwise (remarriage to the agent revives it)

Divorce ends a spouse's authority

Yes · Divorce rules in New York (Divorce Law Map)

How to revoke

You can revoke a power of attorney the way it says, or by delivering a revocation to the agent in person, or by sending a signed and dated revocation by mail, courier, electronic transmission or fax to the agent's last known address. Signing a new power of attorney does not revoke an old one by itself; the new one must say so in the Modifications section.

Telling others

The revocation is not effective against the agent until the agent receives it. It is not effective against a bank or other third party until it has actual notice; a financial institution has notice after a reasonable chance to act on a written notice received at the office where the account is. The statutory form suggests giving written notice to prior agents and to third parties such as your banks.

If it was recorded

If the power of attorney was recorded under Real Property Law § 294, you must also record the revocation in the same office.

Law: Gen. Oblig. Law § 5-1511(4)

Law: N.Y. Gen. Oblig. Law § 5-1511(1), (2); N.Y. Gen. Oblig. Law § 5-1511(3)-(6)

Banks, other states and real estate

Banks and other businesses

A third party in New York cannot refuse a properly signed statutory short form power of attorney without reasonable cause. Within 10 business days after an original or attorney-certified copy is presented, it must accept it, reject it in writing with reasons, or ask the agent for an acknowledged affidavit that it is in full force. Refusing only because it is not the bank's own form, or because of the time since signing, is unreasonable. The agent can bring a special proceeding to compel acceptance.

Law: Gen. Oblig. Law §§ 5-1504, 5-1510

Signed in another state

A power of attorney signed in another state under that state's law, or New York law, is valid in New York.

Law: Gen. Oblig. Law § 5-1512

Real estate

A power of attorney used for real estate can be recorded under Real Property Law § 294; if it was recorded, a revocation must be recorded in the same office.

Law: Gen. Oblig. Law § 5-1511(4)

Health care directive in New York

The document and its form

Document

Health Care Proxy

Official form

Health Care Proxy (Form 1430, New York State Department of Health)Published by New York State Department of HealthVersion: 1430 (8/22)

You do not have to use it.

Living will

Written health care instructions

The living will is a separate document.

New York has no statutory living will form. You can write your wishes and instructions, including limits on your agent, in your health care proxy. Written instructions do not revoke your proxy and are evidence of your wishes for your agent to follow.

Law: N.Y. Pub. Health Law § 2981(5)(d); N.Y. Pub. Health Law §§ 2981(5)(b), 2985(1)(d)

Signing rules

How to sign

Sign and date the health care proxy in front of two adult witnesses, who also sign. No notary or lawyer is needed. Your agent cannot be a witness.

Who signs

Signed and dated by you, or by another person at your direction and in your presence if you cannot sign.

Notary

Not required

Witnesses

2

Who cannot witness

Two adult witnesses sign the proxy and state that you appeared to sign willingly and free from duress. The person you appoint as agent cannot be a witness. The Department of Health's form also says the alternate agent cannot sign as a witness.

Nursing facilities and special settings

If you live in a mental hygiene facility operated or licensed by the Office of Mental Health, at least one witness must not be affiliated with the facility, and if it is also a hospital, at least one witness must be a qualified psychiatrist or psychiatric nurse practitioner. If you live in a facility operated or licensed by the Office for People With Developmental Disabilities, at least one witness must be unaffiliated and at least one must be a qualified physician, nurse practitioner, physician assistant or clinical psychologist.

Electronic signing

Either or both witnesses can witness by audio-video technology if you show photo ID (unless the witness knows you), the conference allows direct interaction, the remote witness receives a legible copy within 24 hours, and signs and returns it.

Law: Pub. Health Law § 2981(2-a)

Law: N.Y. Pub. Health Law § 2981(2), (2-a)

Who can be your agent and what the agent can do

Who cannot be your agent

If you are a patient or resident of a hospital, nursing home, mental hygiene facility or hospice, or have applied for admission, its operator, administrator or employee cannot be your agent unless related to you by blood, marriage or adoption (with special rules for physicians, physician assistants and nurse practitioners). A person who is not your close relative cannot be appointed if they already serve as agent for 10 people.

Law: Pub. Health Law §§ 2980(9), 2981(3)

When the agent starts

The agent's authority starts when your attending practitioner determines that you lack capacity to make health care decisions, and ends if you regain capacity.

Law: Pub. Health Law §§ 2981(4), 2983

Decisions an agent cannot make

If your wishes about artificial nutrition and hydration (tube feeding or IV fluids) are not reasonably known, the agent cannot make decisions about them. Otherwise the agent decides according to your wishes and religious and moral beliefs, or in your best interest.

Law: Pub. Health Law § 2982(2)

Revoking and conflicting documents

Revoking your agent

You can revoke a health care proxy by telling your agent or a health care provider, orally or in writing, or by any other act showing you intend to revoke it. Signing a new health care proxy revokes the old one.

Revoking your instructions

Written wishes or limits added later do not revoke the proxy unless they say so.

Telling others

A physician, physician assistant or nurse practitioner who learns of the revocation must record it in your medical record and tell the agent and your care team.

Divorce ends a spouse's authority

Yes · Divorce rules in New York (Divorce Law Map)

Conflicting documents

A later health care proxy revokes an earlier one.

Law: Pub. Health Law § 2985(1)(c)

Law: N.Y. Pub. Health Law § 2985

If you have no directive

Who decides without a directive

Under the Family Health Care Decisions Act, if you lack capacity and have no health care agent, one person from the highest available class becomes your surrogate. This law applies to decisions about care in a hospital or nursing home and to hospice care. Hospital staff and affiliated practitioners generally cannot be your surrogate unless related to you or a close friend from before admission.

1. A guardian authorized to make health care decisions under Mental Hygiene Law Article 81
2. Your spouse (if not legally separated) or domestic partner
3. An adult son or daughter
4. A parent
5. An adult brother or sister
6. A close friend

Law: N.Y. Pub. Health Law §§ 2994-b, 2994-d

Other states, registry and medical orders

Signed in another state

A health care proxy or similar document signed in another state under that state's law is valid in New York.

Law: Pub. Health Law § 2990

POLST (medical orders)

Medical Orders for Life-Sustaining Treatment (MOLST), form DOH-5003

Official page

Guardianship and conservatorship in New York

What guardianship or conservatorship is

What it is called

Guardian of the person and/or property (Mental Hygiene Law Article 81); guardian of a person with an intellectual or developmental disability (Surrogate's Court Procedure Act Article 17-A)

When a court may appoint one

The court may appoint a guardian if it is necessary to provide for personal needs or to manage property, and the person agrees or is found incapacitated by clear and convincing evidence: likely to suffer harm because they cannot provide for their needs or property and cannot understand and appreciate that inability. The court must consider available resources such as powers of attorney and health care proxies, and grant only the powers needed, as the least restrictive form of intervention.

Law: Mental Hygiene Law § 81.02

Kinds

• Guardian of the person
• Guardian of the property
• Guardian of the person and property, with only the powers the court grants
• Temporary guardian
• Article 17-A guardian (Surrogate's Court) for people with intellectual or developmental disabilities

Law: N.Y. Mental Hyg. Law §§ 81.02, 81.06, 81.29

Who can ask, which court and your own choice

Who may ask

The person alleged to be incapacitated, a presumptive distributee (heir), an executor or trustee where the person is a beneficiary or grantor, the person they live with, any person or agency concerned with their welfare (including the county department of social services), or the head of a facility where they live.

Law: Mental Hygiene Law § 81.06

Court

Supreme Court in the county (Article 81); Surrogate's Court (Article 17-A).

Choosing your own

You can nominate your own guardian in the petition or in a written instrument that is signed, acknowledged and filed in the court case before a guardian is appointed. The court must appoint that nominee unless it finds the person unfit or you say you no longer want them.

Law: Mental Hygiene Law §§ 81.17, 81.19(b)

Effect on a power of attorney

An agent must account to a guardian once one is appointed. If the court finds the power of attorney or health care proxy was made while the person was incapacitated, or the agent breached a fiduciary duty, it may modify, amend or revoke it and require the agent to account to the guardian.

Law: Gen. Oblig. Law § 5-1501A; Mental Hygiene Law § 81.29(d)

Cost, fee waiver and forms

Filing fee

$210 index number fee to the county clerk, plus $95 when a request for judicial intervention is filed.

Law: CPLR 8018(a); CPLR 8020(a)

Fee waiver

A person who cannot afford fees can ask to proceed as a poor person; no index number fee is charged to a poor person entitled by law to an exemption.

Law: CPLR 1101; CPLR 8018(b)

Other options and where to report abuse

Supported decision-making

Supported decision-making agreements

Effective 90 days after the Office for People With Developmental Disabilities' implementing regulations are published or adopted, whichever is later

An adult can choose supporters to help them understand information and make and communicate their own decisions. Supporters agree not to make decisions for the adult. The adult can change or revoke the agreement at any time.

In writing and dated, naming the decision-maker and at least one supporter, listing the decisions and kinds of support, with the supporters' attestation; signed by all supporters and executed by the decision-maker in front of two adult witnesses who are not supporters, or with a notary's attestation. To get the legal-recognition rules in § 82.11, it must also be signed by a facilitator or educator after a recognized facilitation or education process.

Source: Official text

Less restrictive options

• Power of attorney and health care proxy: The court must consider these 'available resources' before appointing a guardian.
• Family Health Care Decisions Act surrogate: A family member or close friend can make hospital, nursing home and hospice care decisions without a court order.
• Supported decision-making agreement: Supporters help the adult make their own decisions.

Report abuse or exploitation

Adult Protective Services (local departments of social services, overseen by the NYS Office of Children and Family Services)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: N.Y. Mental Hyg. Law §§ 82.10, 82.11

Good to know in New York

• A New York power of attorney needs a notary AND two witnesses (the notary can be one of them), and your agent must also sign before a notary before acting.

  Law: Gen. Oblig. Law § 5-1501B

• Signing a new power of attorney does not cancel an old one unless the new one says so in the Modifications section.

  Law: Gen. Oblig. Law § 5-1511(6), § 5-1513(e)

• Banks must accept or reject a properly signed statutory short form within 10 business days and give written reasons for rejecting it.

  Law: Gen. Oblig. Law § 5-1504

• A health care proxy needs two adult witnesses but no notary; witnesses can take part by video.

  Law: Pub. Health Law § 2981

Changes in 2024–2026

The Office for People With Developmental Disabilities adopted supported decision-making regulations (14 NYCRR Part 634) in 2025 to implement Mental Hygiene Law Article 82.

Questions about powers of attorney in New York