AUGUST 5, 2002 VOLUME 10, NUMBER 5
In addition to the danger inherent in powers of attorney (they can literally be licenses to steal) there can be another problem with the documents in practice. For at least some transactions (especially gifts) the use of a power of attorney is often viewed with suspicion, and even clear intentions can become murky.
Austin Stephens, a widower with two children, wanted to transfer his home into his daughter’s name. The evidence indicated that he understood what he was doing, that he wanted to make the gift and that he participated in the transfer. But after his death his son objected to the fact that the deed had actually been signed by Mr. Stephens’ daughter using a power of attorney, rather than by Mr. Stephens.
After Mr. Stephens’ wife died in 1988, his daughter Shirley Williams helped take care of him. His only other child, son Lawrence Stephens, moved out of town shortly after Mrs. Stephens’ death, and though he remained emotionally close to his father he was physically distant. After Lawrence Stephens moved out of town Austin Stephens signed a durable power of attorney, giving his daughter Shirley the power to handle his finances.
As Mr. Stephens’ glaucoma worsened his daughter began to take care of his affairs even more than before. Two years later, he decided he wanted to give the family home to her, and he instructed her to sign the deed for him—his advancing blindness made it too hard for him to do so himself.
After the deed was signed Mr. Stephens had several opportunities to confirm that it reflected his wish. He spoke with a neighbor and longtime friend, explaining that he had given the home to his daughter. He acknowledged the gift when someone from the County Recorder’s office called to ask if he really meant to make the transfer. Months later he visited his own brother and confirmed that he had taken the steps to "disinherit" his son.
Nonetheless, after Mr. Stephens’ death his son moved to bring the home back into his estate so that it would be divided between the two children. He argued that the fact that Shirley used her power of attorney to benefit herself was inherently suspect, and that she should be required to show that she actually had the power to make the transfer. The probate court refused to void the transfer, but the California Court of Appeals, though reluctantly, ordered the property returned.
The California Supreme Court has now ruled with Shirley in upholding Mr. Stephens’ transfer of the home. Although Shirley did not have the power to give herself the property using the power of attorney, ruled the state high court, Mr. Stephens’ repeated ratifications of her actions made the transfer valid. Estate of Stephens, July 25, 2002.
In Arizona the result likely would have been different. Arizona law is very clear about the use of powers of attorney to make a gift, and any such power must be clearly listed in the power of attorney itself. Furthermore, the power to make a gift (along with any other power that might be used to benefit someone other than the person signing the document) must be separately initialed by the person giving the power and witnesses. Unless Mr. Stephens' power of attorney included those provisions, its use to make a gift of the home would probably have been invalid in Arizona.