Reference no: EM131651206

You work for the New York estate planning and elder law firm of Dewey, Cheatum and Howe. One day, your supervising attorney, Steve Howe, comes into your office and tells you the following:

We had this client, Mark Down, who was 74-years-old, in our office a couple of years ago. We did a Will for him that gives all of his assets to his children (his wife died previously). He also executed a durable power of attorney and statutory gifts rider, giving his son, Slowe, the power to handle all of his financial assets; the power of attorney included language allowing Slowe to make unlimited gifts to himself and other family members. Well, the other day, Slowe called me and told me that old Mark's health is starting to deteriorate and although he's still healthy, Slowe is worried that Mark may need Medicaid assistance at some time in the future. Therefore, he wants to try to remove Mark's assets (which consist mainly of a $300,000 brokerage account) from his name and give his assets to his children.

I asked Slowe whether Mark can make the transfer himself, but, Slowe told me that Mark is losing competency and really doesn't want to deal with any financial matters any more. So, I think we ought to tell Slowe to transfer Mark's assets to Mark's children under his power of attorney. Sure, we're looking at a 5-year period of ineligibility for long-term care Medicaid, but Mark's ineligible now anyway, so we have nothing to lose.

However, one thing is bothering me: I heard that a case here in New York, Matter of Ferrara, 7 N.Y.3d 244 (2006), put some kind of limit on what a person can do under power of attorney in terms of gift transfers. Could you please do me a favor and read the case and then let me know, in an essay, what impact you think that case might or might not have on the Down case?