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THE TRANSFER OF DECEDENT’S HOME TO THE TWO CHILDREN WHO WERE CARING FOR HIM WAS COMPENSATION FOR THE CAREGIVERS PURSUANT TO AN AGREEMENT, NOT A GIFT (WHICH WOULD NOT HAVE BEEN AUTHORIZED BY THE POWER OF ATTORNEY) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the transfer of decedent’s home to the two children who were caring for decedent was demonstrated to be compensation for the caregivers pursuant to an agreement, not a gift (the power of attorney did not authorize agents to make major gifts):

The court concluded that the transfer was an improper gift, relying on the presumption that “where parties are related, . . . services were rendered in consideration of love and affection, without expectation of payment” … . Even assuming, arguendo, that the presumption applies to the inter vivos transfer at issue here … , we conclude that respondents supported their motion with “clear, convincing and satisfactory evidence[] that there was an agreement  . . that the services would be compensated” … . Matter of Maik, 2022 NY Slip Op 03589, Fourth Dept 6-3-22

Practice Point: Here there was an agreement that the children who cared for the disabled decedent would be compensated. The transfer of decedent’s home to the caregivers was compensation for their services, not a gift (which would not have been authorized by the power of attorney).

 

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THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).
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