In yet another abuse of a power of attorney case, Matter of Francis, (2008 NY Slip Op 28077) (Dec. March 5, 2008) Westchester County Surrogate Anthony A. Scarpino, Jr. voided a provision in a power of attorney (drafted by the attorney in fact) which provided "No accounting shall be required of my attorney-in-fact during or after my life. My attorney-in-fact shall not incur any liability to me, my estate, my heirs, successors or assigns or to anyone else for acting or refraining from acting under this document."
The Surrogate held that "a clause which seeks to exonerate an attorney-in-fact from any and all liability runs afoul of the spirit of New York's public policy and the duty of an attorney-in-fact as established under [Matter of] Ferrara. Accordingly, the provision exonerating respondent from any liability is void."
In rejecting the attorney-in-fact's argument that the "special powers" he added to the power of attorney permitted him to transfer decedent's property to himself, the Surrogate noted that this argument was flatly rejected in Ferrara, which makes certain the law in New York, that is, an attorney-in-fact must act in the best interests of the principal. Here, the attorney-in-fact failed to proffer any evidence that decedent derived even a scintilla of benefit from the transfers. Nor did he present any proof of decedent's intent to make gifts of her property to him.
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EPTL 11-1.7 includes only wills and trusts. The Surrogate's decision in this case, basically to amend the law and add a power-of-attorney to the statute, is disallowed by the Court of Appeals at 85 NY2d 382, 394. The Appellate Division, Second Department, has recently reiterated the Court of Appeals decision, not once but twice. In December 2008, 59 AD3d 15, and again in March 2009, NY Slip Op 02369. "[A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact." etc.
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