Opinion
23799
October 1, 2003.
Lee, Emerson Ferrarese, LLP, Norwich (Thomas C. Emerson of counsel), for estate.
DECISION AND ORDER
The Will of Cecile S. Jones named as Co-Executors of her estate, Richard M. Runyon and Nancy A. Clarke, her daughter. Letters Testamentary were issued to them on August 6, 2003.
Nancy A. Clarke has submitted to the Clerk of this Court a Durable General Power of Attorney on the New York Statutory Short Form by which she names Richard M. Runyon, her Co-Executor, as her attorney in fact to carry out "estate transactions". In an affidavit submitted with the proposed filing, Mr. Runyon states that Ms. Clarke "travels extensively and is frequently unavailable to execute documents" and "the primary purpose of the Power of Attorney is to allow me to conduct my executorial duties without having to physically send documents to my Co-Executrix for execution."
The Power of Attorney is requested to be filed pursuant to EPTL § 13-2.3; 22 NYCRR 207.48 and § 5-1502G of the General Obligations Law. Those provisions provide rules for recording powers of attorney relating to or affecting "an interest in a decedent's estate." The phrase "interest in the estate" refers to that of a beneficiary, not an executor or other fiduciary. Turano, Practice Commentaries, (McKinneys Com. Laws of NY, Book 173, EPTL 13-2.3). Thus, the section does not apply to the recording of a power of attorney from an executor.
But even more significant, a fiduciary cannot delegate the responsibility for the entire administration of the estate or trust. "The duty of a fiduciary is personal and cannot be divested by delegation." 41 N.Y. Jur.2d, Decedent's Estates § 1479 at p. 84. A fiduciary who does so is liable for breach of trust and potentially subject to surcharge. Woodbridge v Bockes , 59 A.D. 503 (4th Dept. 1901); Matter of Badenhausen , 38 Misc.2d 698 (Surr.Ct. Richmond Co. 1963); In re George Ringler and Co. 70 Misc. 576 (Sup.Ct. New York Co. 1911); Restatement of Trusts, 2d § 171, cmt.c; Scott on Trusts, § 171.1 at 439. Consequently, a fiduciary is not authorized to give a general power of attorney. The phrase "estate transactions" in the General Obligations Law is limited to transactions by an estate or trust beneficiary, and does not apply to an attempted assignment by a fiduciary of total responsibility for the administration of the estate. In Woodbridge , the trustee gave a power of attorney to the husband of the income beneficiary of the trust to manage the trust. The Court held the trustee was guilty of a breach of trust. A fiduciary cannot delegate the whole responsibility for the administration of the estate, even to a co-fiduciary.
If the fiduciary truly does not wish to participate in or be responsible for the administration of the estate, her solution is to petition the court for permission to resign her office. SCPA § 715.
The Clerk is directed not to file the proffered Power of Attorney and to return the papers to the party submitting same without filing.