Issue: The issue of the case is whether the ratio decidendi in “New York, matter of Ferrara (2006)” precludes Slowe from exercising his power of attorney in the aforementioned case for gift transfers to John’s children.
The case of Ferrara, 7.N.Y. 3d 244 (2006) involved an agent who made $820,000 in gifts to himself despite the fact that the Decedent Principal had left his estate to a charity. Even though an agent has the ability to gift, the court held that the agent must act in the best interests of the principal. Mark Down, who is also the Principal, has a son named Slowe Down. Slowe, who believes Mark would need Medicare in the future, wants to transfer $300,000 to ‘Mark’s children’ because medicaid primarily helps low-income people. The attorney-in-fact; the agent has a fiduciary duty to behave with the utmost good faith and undivided devotion towards the principal, according to Section 5 of the General Obligations Law (GOL). This means that the agent operating in the “name, place, and stead of the principal” must behave in the best interests of the principal in all of his or her actions. Best interest is defined in Section 4 of the mental capacity act as any act done in a mode opined to be most favorable to a person unable to make such decisions at that point. The best interests of Mr Mark Down include That all his property are ceded to his children and all his family members. Mr Marks best interests could be referred to as any action which does he would had undertaken had be possessed capacity to do so and which Slowe; as an attorney in fact acting “in his place” must take. As asserted by GOL sec 5-1502
Here, Mr Slowe is at a loss if he should undertake gifting of $300,000 to Mr. Marks children in order to let Mark qualify for Medicaid should his deteriorating health require Medicaid in future. From the little information we gleam from here, it can be assured that Mr. Mark is not a low income earners since $300,000 could be withdrawn from his total assets. Mr. Slowe’s action to gift $300,000 away and cause a depreciation of Mr Marks assets in order to qualify him for a subsequent Medicaid program is in Mr Marks best interest. Article 5, title 15 of the General Obligations Law (as amended) enacted in 1996 and effective January 1, 1997 provides that “when a post-January 1, 1997 power of attorney specifically and expressly authorizes gifting by the agent to himself, the presumption of impropriety no longer applies and the burden of proving the validity of the gift is no longer on the agent”. This was an attempt by the court to assert that the charity to which the assets of the Decedent was willed could file for a legal suit. The phrase meant to establish that the burden of proof lied on him who benefits from the will. However, Mr Slowe qualifies as a beneficiary of the instrument to which he acts as an agent and as such, it can be asserted that his transferr can not be filed for impropriety ‘as long as his actions are undertaken according to the Principal’s instructions (section 5-1502M). Mr Slowe can be advised to carry out his transfer without worry for the law since his actions would be in line with legal provisions.

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