Under N.Y. Statutory Short Form Power of Attorney Effective 6/13/2021, the section titled (f) "Grant of Authority", authorizes the Agent, under Option (I) "personal and family maintenance" to make gifts to a maximum total of $5,000 for ALL such gifts in one calendar year. On the other hand, (g) "certain Gift Transactions: (Optional) " allows one to authorize their agent to make gifts in excess of this amount.
My question is: Can I use both the "personal and family maintenance" of $5,000 max per year AND the "Certain Gift Transactions: Optional" for gifts in excess of the $5,000, or am I limited to choosing one?
1 Answer from Attorneys
That's a great question. As you know the Power of Attorney statute was recently revised, and for that reason lawyers are still navigating the new law and form and asking themselves questions like the one you posted. When questions like this come up, lawyers will often consult with each other to review the statute and its legislative history, along with cases and administrative materials to figure out the most likely correct answer. No one can give an exact, certain answer to this type of question, because it's a matter of interpreting the statute and lawyers can and will differ in their conclusions. Further, because this involves the gifting provisions of the statute, which is the area which results in the most litigation and mischief, I doubt any attorney is going to put themselves on the line and provide a definite answer to the question on a message board. Others might; I would not.
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