A POWER OF ATTORNEY PROVIDED THAT THE AGENT MAY MAKE GIFTS “... TO MY SPOUSE, CHILDREN AND MORE REMOTE DESCENDANTS, AND THE PARENTS IN ANY AMOUNT, EVEN TO THE ATTORNEY(S)-IN- FACT THEMSELVES.”

THE ISSUE BEFORE THE COURT WAS: IS THE ATTORNEY IN FACT (WHO IS THE NAMED AGENT IN THE POWER OF ATTORNEY) ALLOWED TO MAKE GIFTS TO HIMSELF EVEN THOUGH HE IS NOT A SPOUSE, CHILD, REMOTE DESCENDANT, OR PARENT?

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In the Matter of Kislak, 7 Misc.3d 889, decided by New York County Surrogate Preminger, a statutory power of attorney was modified to provide that the agent could make gifts “to my spouse, children and more remote descendants, and the parents in any amount, even to the attorney(s)-in-fact themselves.”  The agent under the power of attorney was neither a spouse, child, remote descendant or parent.  The issue before the court was whether the words “...even to the attorney(s)-in-fact themselves” extended the class to the attorney-in-fact was irrespective of whether the attorney-in-fact fit within the class of a spouse, child, more remote descendant, or parent.

The respondent, stating that the power of attorney was ambiguous, sought to compel the testimony of the draftsperson in an effort to resolve what was meant by the words “even to the attorney(s)-in-fact themselves.”  The court stated that to be ambiguous means that the language is susceptible to two different meanings or uncertain as to any meaning.  The court, determining that the language was clear,  referred to the word ‘even” to suggest that the word only meant to be inclusive in the class only.  Moreover, if an agent is to make a gift which is not specifically authorized under the power of attorney, an immediate issue of the propriety of the action is created since an agent in a power of attorney must act in the best interests of the donor of the power.  If the agent is to make a gift to himself, there must be clear language in the power which supports that result.  Thus, the court concluded that the purpose of the language was to make it clear that an agent who fit into the classes described could make a gift to himself-not to extend the class to a stranger. 

The lesson of the story is a drafting one.  The power must be properly drafted to be absolutely sure that unlimited gifts may be made to anyone-if that is the wish of the donor of the power.   PS.  This author can not say that the language was so clear as to be susceptible to only one meaning and I would have asked for the attorney draftsperson’s testimony.

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