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Legal Myths and Reality By Judge Joan Shkane

By Judge Joan Shkane

January, 2021

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH:  A power of attorney must be exactly and correctly written or it will not be honored by banks, medical providers, and others.

REALITY:  This is currently the law in New York State.  But it will be changed 180 days after mid-December, 2020.  A power of attorney is used to appoint another person to act in financial, medical, Social Security, Medicaid, pension, medical records, and most other matters, including personal decisions.  Without it, for example, an incapacitated person’s rent or mortgage may go unpaid, utility payments cannot be made and other services may go unpaid and therefore unprovided.  The old law requiring exact procedure was written to protect against elder abuse or exploitation.  The old law required an incapacitated person to take an expensive route to have someone appointed as legal guardian by a court.  This would require incurring attorney fees and court fees.  Under the old law the principal (person giving the power of attorney) must be physically able to sign a power of attorney.  If the rules were not exactly followed, there were unintended consequences, such as a bank, hospital, or other entity refusing to act.  

The Legislature approved and the Governor signed a new bill that will go into effect 180 days from mid-December, 2020.  After that time the process of preparing a power of attorney will be streamlined.  Then banks and anyone else interested must accept the form, and the delegation of power it provides, if the form SUBSTANTIALLY COMPLIES with the new statute.  The form will not need to be exactly in accordance with the law.  Currently, when an incomplete or questionable power of attorney form is presented, if it is not precisely correct, the default is to deny the power to act to the designated person.  Soon the default will be to accept the form and act in accordance with the power granted to the third party.  In addition, a principal will be able to appoint someone to sign a power of attorney form on his/her behalf, if the principal cannot physically do so.  An example of this is a hospital caring for an incapacitated person.  The hospital will be able to Zoom with the principal and third party and during the Zoom conversation the incapacitated person will be able to direct the third party to sign all documents, including a power of attorney.  This new law is expected to reduce the costs of granting a power to from thousands of dollars for a guardian, to several hundred for a power of attorney, at most.  

MYTH: New York laws do not respond to real needs of the people.

REALITY: Some new laws that will go into effect in New York State in 2021 fall into several categories:  Some of them are the Legislature’s direct response to the Covid virus, or to individual medical needs.  Some eligible employees are entitled to up to 12 weeks of job-protection, including paid time off.  This can be taken all at once or on separate days.  Among other events, the time-off can be used to care for a new child, to care for an ill family member, or to help when a family member is deployed overseas on active military service.  

The cost of insulin will be capped for out-of-pocket costs at $100.00 for a thirty-day supply.

A panel will be created to review how to simplify health insurance claims for Covid related treatment;

Some new laws are directly in response to specific situations.  In 2005, an 11-year-old girl was killed in a boating accident off Long Island.  Now all boat operators born after January 1, 1988 must complete a boating safety course.  

In 2018, a stretch limousine crash in Schoharie killed twenty people.  Now stretch limos altered starting in 2021 must have safety belts for each seat.  Limos modified before 2021 must have safety belts for each seat by January 1, 2023;

The 2020 election cycle produced several new laws.  Now there will be an immediate full, manual recount when the margin of victory for one candidate is 20 or fewer votes, or 0.5% or smaller.  Where at least one million votes were case and the victory is less than 5,000 votes, there will be an immediate manual recount.

Sample ballots must be posted by each county Board of Election on its website in a conspicuous place;

There are numerous miscellaneous new laws.  Illegal dumping of construction waste now will be considered a major crime.  

Under the new Child Parent Security Act, whenever a child is born using donated sperm, eggs or embryos, the intended parents will have all rights and obligations over the child.  The donors will not;

One of the most important and possibly the most beloved of new laws protects a consumer. Starting February 9, 2021, if a business, such as Netflix or Hulu, seeks to automatically renew the service without the subscriber’s consent, it cannot.  Companies must explain clearly how renewal works.  A business cannot advertise a service as free when, in fact, it is free only when attached to an automatic renewal.  This may be a long overdue consumer protection and will probably be greatly welcomed!

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.  



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