Yes, You can Remove an Agent Under a Power of Attorney in New York.
A Power of Attorney can give another person control over someone’s finances. In New York, an individual appointed as an agent under a Power of Attorney may have authority to access bank accounts, pay bills, manage investments, handle real estate, file taxes, conduct business transactions, and take other significant financial actions on behalf of the principal.
New York law provides several ways to remove an agent under a Power of Attorney. The appropriate procedure depends largely on whether the principal is still capable of revoking the agent’s authority and whether court intervention is necessary.
Can You Remove Someone as Remove an Agent Under a Power of Attorney in New York?
Yes. An agent under a New York Power of Attorney can be removed.
If the principal is able to act for themselves, the simplest solution may be for the principal to revoke the agent’s authority.
Under New York General Obligations Law § 5-1511, a principal may revoke a Power of Attorney or revoke an individual agent’s authority. Written notice of the revocation should be delivered to the agent and ordinarily should also be provided to banks, financial institutions, investment companies, and other third parties that may have relied upon the Power of Attorney.
If the Power of Attorney was recorded—for example, because it was used in connection with a real estate transaction—the revocation may also need to be recorded.
The situation becomes more complicated when the principal is incapacitated, vulnerable, or unable to protect their own financial interests. In those circumstances, a family member or other authorized person may seek court intervention.
How Can a Court Remove an Agent Under a Power of Attorney in New York?
New York General Obligations Law § 5-1510 permits a special proceeding concerning the conduct and authority of an agent acting under a Power of Attorney.
Among other remedies, the court may remove an agent when the agent has violated the agent’s fiduciary duties or is unfit, unable, or unwilling to perform those duties.
This is particularly important in situations involving an elderly or incapacitated parent whose agent is suspected of misusing the parent’s finances.
The proceeding can potentially seek more than simply removal. Depending upon the circumstances, the petitioner may ask the court to examine the agent’s conduct, require records, direct an accounting, order the return of property, or address the validity of transactions undertaken using the Power of Attorney.
What Are an Agent’s Fiduciary Duties in New York?
An agent under a Power of Attorney is a fiduciary. That means the agent does not simply have authority over the principal’s property—the agent also has legal obligations concerning how that authority is exercised.
Under General Obligations Law § 5-1505, an agent must act according to the principal’s instructions or, where there are no instructions, in the principal’s best interests. The agent must also avoid conflicts of interest and generally keep the principal’s assets separate from the agent’s own property.
An agent must keep records of receipts, disbursements, and transactions undertaken on the principal’s behalf. It is the agent’s burden and duty to keep and maintain proper records.
An agent’s access to someone’s bank account is therefore not permission to treat the money as the agent’s own.
For example, potential fiduciary problems may arise when an agent:
- Transfers the principal’s money into the agent’s personal account;
- Makes unauthorized gifts to themselves or other family members;
- Withdraws large amounts of cash without explanation;
- Uses the principal’s credit or debit card for personal expenses;
- Changes ownership of accounts for the agent’s own benefit;
- Transfers the principal’s real estate without proper authority;
- Refuses to explain transactions;
- Fails to maintain financial records;
- Uses the Power of Attorney to favor themselves over the principal;
- Sells or transfers property for substantially less than its value; or
- Otherwise acts contrary to the principal’s instructions or interests.
Whether a particular transaction was improper depends on the language of the Power of Attorney, the authority actually granted to the agent, the circumstances surrounding the transaction, and the agent’s fiduciary obligations.
Can I Remove an Agent Under a Power of Attorney in New York if the Agent is my Sibling?
Potentially.
Disputes concerning Powers of Attorney frequently arise between siblings when one child controls an elderly parent’s finances and the other children begin noticing unusual activity.
For example, one sibling may discover that the agent sibling has been making large withdrawals from the parent’s accounts, transferring assets, paying themselves, changing account ownership, or refusing to provide information about the parent’s finances.
Being the principal’s child does not give an agent the unrestricted right to use the principal’s money.
A child acting under a Power of Attorney is subject to the same fiduciary obligations as any other agent.
If the parent still has sufficient capacity, the parent may choose to revoke the sibling’s authority. If the parent cannot effectively protect their own interests, court proceedings may be necessary.
After You Remove an Agent Under a Power of Attorney in New York, Can You Force a Power of Attorney Agent to Provide an Accounting?
In certain circumstances, yes.
New York law requires an agent to maintain records concerning receipts, disbursements, and transactions performed on behalf of the principal.
General Obligations Law § 5-1510 also allows certain persons to bring a special proceeding to compel an agent to produce the Power of Attorney and financial records where the statutory requirements are satisfied.
Bank statements, canceled checks, wire transfers, investment statements, deeds, tax returns, credit card statements, and other financial records may reveal transactions that require further investigation.
A court may also require an agent who has been removed to provide records of transactions and turn over property belonging to the principal.
Who Can Bring a Proceeding to Remove an Agent Under a Power of Attorney in New York?
General Obligations Law § 5-1510 identifies several categories of people who may commence certain proceedings involving a Power of Attorney.
Depending upon the relief sought, this can include the principal’s:
- Spouse;
- Child;
- Parent;
- Successor in interest;
- Co-agent or successor agent;
- Guardian; and
- Certain other persons or governmental representatives authorized by statute.
Accordingly, an adult child who believes a sibling is abusing a parent’s Power of Attorney may have standing to seek judicial relief even though that child was not named as an agent.
Standing and the appropriate procedure should nevertheless be evaluated carefully before beginning litigation.
What Evidence Can Be Used to Remove an Agent Under a Power of Attorney in New York?
The evidence depends upon the alleged misconduct.
Bank and investment records are frequently critical. They may show unusual withdrawals, transfers to the agent, checks written for the agent’s expenses, new joint accounts, beneficiary changes, or transfers inconsistent with the principal’s historical financial practices.
Other useful evidence may include emails, text messages, real estate documents, financial statements, tax records, testimony from caregivers or relatives, medical records concerning the principal’s condition, and communications between the agent and financial institutions.
The Power of Attorney itself is also essential because the court must determine exactly what authority the principal gave the agent.
A transaction that looks suspicious is not necessarily unauthorized. Conversely, the fact that a Power of Attorney grants broad authority does not eliminate the agent’s fiduciary obligations.
Can a Guardianship Court Revoke a Power of Attorney?
Yes, in appropriate circumstances.
During a New York Mental Hygiene Law Article 81 guardianship proceeding, the court has authority under Mental Hygiene Law § 81.29 to address certain previously executed Powers of Attorney and other delegations.
If a guardian is appointed, the court may modify, amend, or revoke certain prior appointments or powers where the statutory requirements are satisfied, including circumstances involving incapacity at the time of execution or a breach of fiduciary duty by the previously appointed agent.
The court may also require the former agent to account to the guardian.
This means that a dispute involving an abusive Power of Attorney may sometimes intersect with an Article 81 guardianship proceeding, particularly where the principal is incapacitated and broader protection of the person’s finances is required.
FAQs About How To Remove an Agent Under a Power of Attorney in New York
Yes. If you are the principal, New York General Obligations Law § 5-1511 generally permits you to revoke the Power of Attorney or the individual agent’s authority. Written notice should be provided to the agent and to financial institutions and other third parties that may rely upon the document.
You cannot personally revoke another person’s Power of Attorney simply because you disagree with the agent. However, New York law allows certain family members, including a child of the principal, to commence a proceeding under General Obligations Law § 5-1510 seeking court intervention, including removal of an agent where the statutory grounds exist.
Under General Obligations Law § 5-1510, a court may remove an agent who has violated the agent’s fiduciary duties or is unfit, unable, or unwilling to perform those duties.
Not simply because they are the agent. An agent is a fiduciary and must comply with the authority granted by the Power of Attorney and New York’s fiduciary requirements. General Obligations Law § 5-1505 specifically provides that an agent may not make gifts of the principal’s property to themselves without specific authorization in the Power of Attorney.
An agent has statutory record-keeping obligations. Certain persons identified by New York law can demand records, and failure to provide required records can result in a special proceeding to compel disclosure.
Usually not if it is a durable Power of Attorney. Under New York law, a Power of Attorney is durable unless it expressly provides that the principal’s incapacity terminates it.
A court may grant relief concerning a Power of Attorney under General Obligations Law § 5-1510. In an Article 81 guardianship proceeding, Mental Hygiene Law § 81.29 may also permit the court to modify, amend, or revoke certain prior appointments or powers under the circumstances specified by the statute.
Yes, under appropriate circumstances. New York law provides mechanisms to compel records and review transactions undertaken by an agent. If an agent is removed, the court may also require the agent to provide records and turn over property belonging to the principal.
Not necessarily. New York’s statutory scheme does not make execution of a subsequent Power of Attorney an automatic revocation of every earlier Power of Attorney. When changing agents, it is important to address revocation expressly and provide notice to the former agent and relevant third parties.
New York Power of Attorney Disputes
Power of Attorney disputes often involve more than determining who should manage a parent’s finances. They can involve allegations of breach of fiduciary duty, financial exploitation, improper transfers, gifts, real estate transactions, joint accounts, beneficiary changes, and questions about the principal’s capacity.
RK Law PC represents clients in contested estate, trust, guardianship, and fiduciary matters throughout New York City and surrounding counties.
If you are concerned that an agent under a Power of Attorney is misusing a parent’s or loved one’s assets, an attorney can review the Power of Attorney, investigate the transactions, determine whether an accounting or court proceeding is appropriate, and evaluate available remedies to protect or recover the principal’s property.
Contact RK Law PC to discuss your concerns about a Power of Attorney, suspected financial misconduct, or how to Remove an Agent Under a Power of Attorney in New York.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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