Trusts and estates. The amended POA statute, enacted in 2002, invalidates gift transactions made after its effective date, even though they would otherwise have been valid under the statute at the time the POA was signed

In re Estate of Lovell, 2011 VT 61 (Reiber, C.J. )

Defendants Charles and Hubert Lovell appeal a grant of summary judgment to plaintiff, Duane Amsden, in which the trial court found that Charles Lovell could not, pursuant to his powers as his father’s attorney-in-fact, transfer title of his father’s farm to himself and his brother, Hubert Lovell, where the power of attorney failed to explicitly grant the power to make such a gift.  We affirm.

Here, unlike Kurrelmeyer, 2006 VT 19, ¶ 2 , the property transfer occurred after the effective date of the amended POA statute.  Under 14 V.S.A. § 3515(b): “[a]ny term of a power of attorney, executed after the effective date of [the POA statute] . . . which is otherwise inconsistent with, the provisions of this subchapter, shall be void and unenforceable.” The POA granting Charles Lovell authority to make transfers in his father’s stead was created prior to the effective date of the amended POA statute; however, he exercised the term providing him power of transfer after the effective date.  The term providing the power to transfer did not give him the explicit power to make gifts, as required by the amended POA statute, and thus an attempt to exercise authority pursuant to that term after the statute’s effective date was void and unenforceable.