To: Steve Howe
From: Cristina Aravena
Date: September 21, 2015
Re: Mark Down

Client Mark Down came to the law firm of Dewey, Cheatum, and Howe. We did a will for him stating that all his assets go to the children since his wife previously past. He executed a power of attorney to his son, Slowe, giving him the power to handle all of his assets.
Mark Down health started deteriorating and Slowe is worried that Mark may need Medicaid.
Slow wants to remove Mark’s assets of $300,000 brokerage account and give them to his children. Since Slowe said Mark is losing competency and doesn’t want to deal with any financial matters anymore, Slowe is asking if he can transfer the money. Right now that would put Mark at a 5 year period of ineligibility for long term Medicaid care.
According to New York law, there are limitations to how much a power of attorney can gift a year. In the Matter of Ferrara 7 N.Y. 3d 244 (2006), decedent George J. Ferrara, executed a will stating that his entire assets will go to the Salvation Army. When the decent became hospitalized in Florida, his nephew Dominick Ferrara came and visited then decedent, then told Dominick to obtain powers of attorney so that [he] could attend to [decedents] affairs. (id. 248)
“Florida powers of attorney apparently authorized Dominick and john Ferrara to write checks on decedent’s bank accounts and liquidate certificates of deposit”. On January 25, 2000, decedent signed multiple originals of a “Durable General Power of Attorney; New York short forms, appointing John and Dominick Ferrara as his attorney-in-fact.
“In [his] name, place and stead in any way which [he] [him] self could do, if [h] were personally present,” with the respect to following matters [listed in lettered subdivision (A) through (O)] as each of the, is defined in Title 15 of Article 5 of New York General Obligations Law to the extent that [he was] permitted by law to act through an agent.”

“The kind of transactions, in particular subdivision (m) specified “making gifts to my spouse, children and more remote decedents, and parents, not to exceed in the aggregate $10,000 to each of such persons in any year.” (id. 249)
As it goes for Slowe, the decedent’s nephew went against the short form Power of Attorney and gifted all the decedent’s assets to himself. The short form Power of Attorney states that you can only gift $10,000 per year to each person. Dominick claimed that the decedent said that he can do so as he pleased. The decedent never made any memorandum or note to this effect. (id. 249)
In accordance with New York Law, Slowe would only be able to gift $10,000 per person any year in order to gift Mark’s assets.