Matter of Imre B.R. (Ilona B.R.)

[*1] Matter of Imre B.R. (Ilona B.R.) 2013 NY Slip Op 51466(U) Decided on September 5, 2013 Supreme Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 5, 2013
Supreme Court, Dutchess County

In the Matter of the Application of Imre B.R., as agent under the Durable General Power of Attorney, Petitioner, For an Order Pursuant to General Obligation Law §§5-1504[2] and 5- 1510[2][I] Honoring the durable power of attorney, For Ilona B.R.



2953/13



STACY M. SADOVE, ESQ.

LITTMAN KROOKS, LLP

Attorneys for Petitioner

399 Knollwood Road

White Plains, New York 10603

JOHN P. BEVILACQUA, ESQ.

FULBRIGHT & JAWORSKI, LLP

Attorneys for Merrill Lynch Pierce Fenner & Smith, Inc.

666 Fifth Avenue

New York, New York 10103

James D. Pagones, J.

Petitioner seeks an order, pursuant to General Obligations Law §§5-1504(2) and 5-1510[2][i], compelling Merrill Lynch Pierce Fenner & Smith, Inc., named herein as Merrill Lynch/Merrill Edge (hereinafter Merrill Lynch) to accept the power of attorney executed on December 18, 2010.

The Court read and considered the following documents [*2]upon this application [FN1]:

Order to Show Cause-Petition-Verification-1-6

Exhibits A-B-Affidavit of Service

Response-Verification-Exhibits 1-2-7-11

Affirmation of Service

Upon the foregoing papers, the order to show cause is decided as follows:

Pursuant to General Obligations Law §5-1510(2)(i), a special proceeding may be commenced to compel acceptance of a power of attorney, in which event, the relief to be granted is limited to an order compelling acceptance. Prior to compelling Merrill Lynch to accept the power attorney at issue herein, this Court must examine whether a valid power of attorney exists. Merrill Lynch asserts that Ilona R. may have lacked capacity at the time the power of attorney was executed. In support of this allegation Merrill Lynch annexes a letter, provided to it by the petitioner, wherein Dr. M. states that "Ilona R. was admitted to our facility on 1/19/11. Ms. R. suffers from moderate to severe Dementia. At this time, she is unable to care for herself or make sound legal decisions." However, counsel for Merrill Lynch indicates that it stands ready to comply with the court's ruling regarding any assets of Ms. Ilona R. in its control.

A power of attorney is defined by General Obligations Law §5-1501, as a document "by which a principal with capacity designates an agent to act on his or her behalf." Capacity is defined as the ability to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any provision in a power of attorney, or the authority of any person to act as agent under a power of attorney (see General Obligations Law §5-1501[2][c]).

If Ilona B. R. lacked capacity to understand and comprehend the nature of the transaction, when she signed the power of attorney, then the power of attorney is void (see Matter of Mildred M.J., 43 AD3d 1391 [4th Dept 2007]). The letter submitted in opposition to the order to show cause indicates that on January 19, 2011 "Ms. R. suffer[ed] [*3]from moderate to severe Dementia." Initially, this Court notes that there is no medical evidence offered as to Ms. R.'s state of mind at the time of the signing of the power attorney, i.e. December 18, 2010. Nor, does this Court seek to supplant its intellect for that of a physician, so as to indicate whether or not a lack of capacity may or may not be inferred by a statement that Ilona R. suffered from "moderate to severe dementia," a month following her execution of a power of attorney. Moreover, the fact that Ilona R. was diagnosed with "moderate to severe dementia" does not in and of itself, create an issue of fact as to her mental capacity (see generally Matter of Friedman, 26 AD3d 723 [3rd Dept 2006]; leave to appeal denied 7 NY3d 711).

Accordingly, the petition to compel Merrill Lynch to accept the power of attorney is granted in its entirety. The foregoing constitutes the decision and order of this Court.

Dated:Poughkeepsie, New York

September 5, 2013

ENTER

_______________________________

HON. JAMES D. PAGONES, A.J.S.C.

Footnotes

Footnote 1: Opposition papers to Merrill Lynch's response were received by chambers on September 4, 2013, however, the petition was marked fully submitted on August 29, 2013 and thus, the aforementioned papers were not considered.