§ 5-1505 — Standard of care; fiduciary duties; compelling disclosure of record

New York § 5-1505

• Jurisdiction: New York
• Law GOB: General Obligations
• Title 15: Statutory Short Form and Other Powers of Attorney For Financial and Estate Planning
• Art. 5: Creation, Definition and Enforcement of Contractual Obligations

Text

§ 5-1505. Standard of care; fiduciary duties; compelling disclosure of\nrecord. 1. Standard of care. In dealing with property of the principal,\nan agent shall observe the standard of care that would be observed by a\nprudent person dealing with property of another.\n 2. Fiduciary duties. (a) An agent acting under a power of attorney has\na fiduciary relationship with the principal. The fiduciary duties\ninclude but are not limited to each of the following obligations:\n (1) To act according to any instructions from the principal or, where\nthere are no instructions, in the best interest of the principal, and to\navoid conflicts of interest.\n (2) To keep the principal's property separate and distinct from any\nother property owned or controlled by the agent, except for property\nthat is jointly owned by the principal and agent at the time of the\nexecution of the power of attorney, and property that becomes jointly\nowned after the execution of the power of attorney as the result of the\nagent's acquisition of an interest in the principal's property by reason\nof the agent's exercise of authority granted in the modifications\nsection of a statutory short form power of attorney or in a\nnon-statutory power of attorney. The agent may not make gifts of the\nprincipal's property to himself or herself without specific\nauthorization in a power of attorney.\n (3) To keep a record of all receipts, disbursements, and transactions\nentered into by the agent on behalf of the principal and to make such\nrecord and power of attorney available to the principal or to third\nparties at the request of the principal. The agent shall make such\nrecord and a copy of the power of attorney available within fifteen days\nof a written request by any of the following:\n (i) a monitor;\n (ii) a co-agent or successor agent acting under the power of attorney;\n (iii) a government entity, or official thereof, investigating a report\nthat the principal may be in need of protective or other services, or\ninvestigating a report of abuse or neglect;\n (iv) a court evaluator appointed pursuant to section 81.09 of the\nmental hygiene law;\n (v) a guardian ad litem appointed pursuant to section seventeen\nhundred fifty-four of the surrogate's court procedure act;\n (vi) the guardian or conservator of the estate of the principal, if\nsuch record has not already been provided to the court evaluator or\nguardian ad litem; or\n (vii) the personal representative of the estate of a deceased\nprincipal if such record has not already been provided to the guardian\nor conservator of the estate of the principal.\n The failure of the agent to make the record available pursuant to this\nparagraph may result in a special proceeding under subdivision one of\nsection 5-1510 of this title.\n (b) The agent may be subject to liability for conduct or omissions\nwhich violate any fiduciary duty.\n (c) The agent is not liable to third parties for any act pursuant to a\npower of attorney if the act was authorized at the time and the act did\nnot violate subdivision one or two of this section.\n 3. Resignation. (a) An agent who has signed the power of attorney may\nresign by giving written notice to the principal and the agent's\nco-agent, successor agent or the monitor, if one has been named, or the\nprincipal's guardian if one has been appointed. If no co-agent,\nsuccessor agent, monitor or guardian is known to the agent and the\nprincipal is incapacitated or the agent has notice of any facts\nindicating the principal's incapacity, the agent may give written notice\nto a government entity having authority to protect the welfare of the\nprincipal, or may petition the court to approve the resignation.\n (b) The principal may provide for alternative means for an agent's\nresignation in the power of attorney.\n