Mark Down, who is 74 years old, made a will leaving all of his assets to his children. He also executed a power of attorney, giving his son, Slowe, permission to handle all of his financial assets. Slowe is now worried that Mark may need Medicaid assistance in the future and wants to remove his assets, from his name, and give them to his children. Under the current law, Mark will be ineligible for Medicaid for a period of 5 years after the gift transfer is made, so it's in Marks best interest to get all of his assets transferred as soon as possible. Because Mark doesn't want to deal with the financial matters himself, the issue is whether or not Slowe can transfer Marks assets under his power of attorney.
In the case, Matter of Ferrara, 7 N.Y.3d 244 (N.Y. 2006), George Ferrari made a will in June 1999, leaving all of his property to the Salvation Army. Later that year, as his health began to deteriorate, George called on his brother, John, and Johns son, Dominick, for assistance. George wanted the family members to have control of his property and distribute it however they wanted to. On January 25, 2000, George signed a durable general power of attorney, which appointed John and Dominick, as his attorneys-in-fact. In addition, he signed a typewritten provision allowing John and Dominick to make gifts without limitation in amount, to themselves. Three weeks later, George's health deteriorated and he passed away. During that three week period, Dominick transferred about 820,000 of his uncles assets to himself.
Upon learning of George's death, the Salvation Army filed a claim, with the Surrogates court, seeking a turnover of George's assets. Finding that George had been competent and correctly completed the forms prior to his death, the salvation army's case was dismissed. The Salvation Army, then appealed, and the appellate division also dismissed the case. When the case reached the state's highest court, the New York State Court of Appeals...
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