Second Department Ruling: Grandfather Status for Pre-Amendment Powers of Attorney

This week we wanted to draw your attention to an interesting decision out of the Appellate Division, Second Department, which reversed a lower Court’s Order that had vacated a deed of record and confirmed the fact that a Power of Attorney (POA) that was validly executed under the Statute in effect at the time the POA was executed, remained valid to transfer Real Property notwithstanding that the executed POA would not have been valid if executed subsequent to changes to the Statute. 
The relevant facts of, as well as a link to, the case are set forth below.

The petitioner, Jason Goldberg, and the objectant, Barrie Meyers, are the adult children of the decedent, Beverly Tuzzolino (hereinafter Beverly). On May 31, 2006, Beverly executed a durable power of attorney in favor of Meyers for purposes including real estate transactions. The power of attorney authorized every power listed, including lifetime gifts up to the gift tax exclusion amount and a catch-all authorization for "all other matters."  Following the 2009 amendments to the General Obligations Law (see L 2008, ch 644, as amended by L 2009, ch 4, § 1 [eff Sept. 1, 2009]), the power of attorney was not amended to include a statutory gifts rider (see General Obligations Law former § 5-1514 [4] [b]). By deed dated September 4, 2012 (the “2012 Deed”), Meyers, as attorney-in-fact for Beverly, transferred Beverly's one-sixth interest in certain premises in Manhattan to herself and Beverly died the following day.
 
Goldberg, as the administrator of Beverly's estate, commenced this proceeding to set aside the deed. The petition alleged that the transfer was invalid as a self-dealing gift only benefitting Meyers, and further alleged that Meyers improperly effectuated the transfer after Beverly's death.  The lower Court granted the petitioner’s motion for summary judgment, which in part, vacated the 2012 Deed and this appeal ensued.
 
In reversing the Lower Court’s Decision, the Appellate Court reasoned that “where, as here, the power of attorney was executed prior to the effective date of the amendments, and provided the agent with all powers listed, we conclude that the 2009 amendments did not abrogate the presumption of impropriety as to disputed transfers which occurred after the effective date of the amendments.” (citations omitted). 

To view this case, click the link below: 
https://www.nycourts.gov/reporter/3dseries/2022/2022_04967.htm

This case is an important reminder to carefully review the Statute(s) in effect at the time a POA is executed to determine whether it was validly executed and, therefore, can be used for a particular transaction