Attorney-at-Law

IT’S THAT FORM AGAIN

In Uncategorized on 02/17/2022 at 17:37

Yesterday the New York State Academy of Trial Lawyers provided us with an engrossing lecture on Our Fair State’s fifth shot at producing a short form (“short” being only eight (count ’em, eight) pages long) Power of Attorney. Nevertheless, our General Obligations Law Section 5-1513 thus entitles it; “and my unhallowed hands shall not disturb it, or the Country’s done for.”

The learned presenter dwelt on the difficulty many agents had encountered when seeking to get the statutory short form accepted by banks, brokerages, and other financial institutions. They were met with objections that the principal must establish current competence, even though the power of attorney expressly provided that it survived incompetence. There were demands that the principal show up in person. And the old standby, “just use our form.”

Now of course, the latest and greatest enactment’s exclusive remedy, a special proceeding to compel acceptance, comes with a garnish of actual damages and legal fees.

I wish Judge Elizabeth A. (“Tex”) Copeland had issued her order in Estate of Anne Milner Fields, Deceased, Bryan K. Milner, Executor, Docket No. 1285-20, filed 2/17/22, in time for me to show how they do it better in Judge Tex Copeland’s home State of Texas.

Bryan, principal beneficiary of estate of the late AMF, was also her agent per a power of attorney given him by the late AMF years before she became the late AMF. He used same to manage her assets, although the greatest part thereof were publicly-traded securities managed by Wells Fargo. Yesterday’s presenter stated that Wells Fargo was among the best of the banks that honored the statutory short form. How well they deserve that praise can be seen from how Bryan used the power of attorney.

Bryan set up various entities in the thirteen months prior to the late AMF’s demise. He transferred much, though not all, of AMF’s assets among these, and created partnerships ostensibly to manage same, using the power of attorney to sign both for AMF and himself.

Bryan says Section 2036 doesn’t claw back said assets into the late AMF’s taxable estate, and wants summary J. Among other reasons, he says he needed a new entity because banks didn’t honor his power of attorney.

Judge Tex Copeland finds a bunch questions material fact (hi, l Judge Holmes), which you can read for yourself, but the one I like best is “If Mr. Milner had issues with financial institutions accepting his power of attorney, then how did he transfer securities managed by Wells Fargo and shares of North Dallas Bank & Trust Co. to [new entity] so quickly?” Order, at p. 5 (Footnote omitted, but I’ll print it).

“Mr. Milner’s ability to use his power of attorney to direct financial institutions to transfer millions of dollars in assets to a newly-formed partnership potentially contravenes his assertion that he has had issues with financial institutions accepting his power of attorney.” Order, at p. 5, footnote 6.

No, Judge, it potentially contradicts, that is, asserts the opposite, not contravenes, that is, violates, his assertion.

But maybe Wells Fargo truly is one of the better banks that honors statutory forms of power of attorney.

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