Q: In a POA document does the express right to "give" or "dispose of property" convey the same meaning as "gift"?
We are trying to establish an "Asset Protection Trust" with a "Life Estate Agreement" for my elderly parents. There is debate that their POA is flawed. It allows them to have the recipient of the POA to "Sell, Buy, Give, or Dispose" of any of their property. It does not expressly state the right to "Gift" the property to a Trust for their surviving children. My position is I believe the word "Give" is synonymous and essentially imparts the same intent as the word "Gift". Another party disagrees and is citing NJ Statute 46:2B-8.13a as the reason the POA is flawed. Since my mother is in stage 4 of Alzheimer's, we cannot modify the POA so this would involve moving towards a Guardianship with my Father as Guardian. We would prefer not to go that route for both cost and time reasons. Our preference is to just proceed with drafting the two documents referred above. If you can clarify this position it would be appreciated.
A:
One of the biggest issues I see is when a document is TOO specific. MANY PoAs go into GREAT detail and never use the words "or otherwise transfer" which makes it clear the agent is not only allowed to do x but also to just generally manage the property. 50 pages of detail without the one you need is useless, but a two page document that grants broad powers in a way people can understand will be far better in 99.9% of cases.
That said, without seeing the whole document however, you CANNOT interpret a single phrase with any degree of accuracy. You need to show the document to a local lawyer who can read the whole thing and determine what can or cannot be done with it. NJ law may or may not figure in, but the point is nobody can provide advice on such a specific question in this sort of forum. You NEED to talk to a local lawyer, and you NEED to hire him/her to insure the documents and transactions you enter into will both be legally binding and will also accomplish your goals. There may be another easier way to do what you are suggesting here, or this may be the exact right thing to do, or there may be a third option you aren't thinking about.
Seek local legal advice. -- This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship.
I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice
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