Thursday, May 19, 2022

DELGALLO.com WEALTH MANAGEMENT ESSENTIALS –Gifting by a Power of Attorney

 

DELGALLO.com WEALTH MANAGEMENT ESSENTIALS Gifting by a Power of Attorney

By LEONARD J. DEL GALLO JR., M.S., MPASsm, CFP®

(www.DELGALLO.COM)      Del Gallo Financial Services, LLC

There have been numerous court cases that have litigated the validity of gifts by the attorney-in-fact if the expressed power to gift was not stated within the durable power of attorney form; Estate of Casey v. Commissioner, Townsend v. United States, Estate of their state. The courts decided that the principal had the intention of including the power to make gifts to the attorney-in-fact and therefore those gifts would not be included within Mrs. Pruitt’s estate under Section 2038 (Estate Neff v. Commissioner, Burnet v. Hamel, and Estate of Stinchcomb v. Stinchcomb. Some of these cases determined that the attorney-in-fact could make gifts without express written permission within the durable power of attorney form, while other cases determined the attorney-in-fact was not authorized to make the gifts according to of Suzanne C. Pruitt). Each State may or may not have current legislation addressing the validity of gifts made by the attorney-in-fact if gift making authority is not implied within the durable power of attorney form and the issue can lead to litigation with unknown consequences. If the state has not addressed the issue by passing laws or statutes then the attorney creating the durable power of attorney for a client should not assume that the durable power of attorney form will allow the attorney-in-fact to execute gifts unless it is specifically stated within the estate planning documents and durable power of attorney form. If the principal does not want to include gifting privileges to the attorney-in-fact then the estate documents and durable power of attorney form should state clearly that the principal does not want to include gifting privileges and the attorney-in-fact should be prohibited from this action in all the estate documents. Clients and their attorney should make sure their intentions are clearly written within their legal documents to avoid negative tax implications and unnecessary litigation.

Any questions please contact Del Gallo Financial Services, LLC by visiting our website at https://delgallo.com/. Del Gallo Financial Services, LLC can arrange an educational seminar or workshop for your organization’s members and/or employees. This research commentary is intended to educate families so they may gain an introduction to a difficult planning topic and is not intended for any other purpose.  Articles created by Len Del Gallo Jr., may not be copied or used without written permission from Len Del Gallo Jr. Please note that some information may be protected by copyright laws. Del Gallo Financial Services, LLC and its’ representatives do not provide tax or legal advice. Please consult your tax advisor or attorney for guidance on such matters and before implementing any strategies and/or updates to your planning. Del Gallo Financial Services, LLC is a Registered Investment Advisor and Licensed Insurance Agency. 

                                               Works Cited

Madden, Robert. “Tax Planning for the Highly Compensated.” Sections 1.01, 1.02, 1.03,

             2.01, 2.02, 2.03, 2.04, 2.05, 3.01, 3.02, 3.04, 3.07, 3.08, 4.01, 4.03. 2011. Estate

             Planning Library of RIA Checkpoint.Thompson Reuters. Web. 23 Aug. 2012.

Madden, Robert. “Tax Planning for the Highly Compensated.” Sections 5.01, 5.02, 5.03,

             5.04, 5.05, 5.06. 2011. Estate Planning Library of RIA Checkpoint. Thompson

             Reuters. Web.23 Aug. 2012.

Madden, Robert. “Tax Planning for the Highly Compensated.” Sections 6.01, 6.02, 6.03,

             6.04, 7.05, 8.02, 10.02,10.03, 10.04, 10.05, 10.06, 11.02, 11.10. 13.02. 2011. Estate

             Planning Library of RIA Checkpoint.Thompson Reuters. Web. 23 Aug. 2012.

Madden, Robert. “Tax Planning for the Highly Compensated.” Part III Estate Planning.

            Chapter 3, 10 & 13.Overview of Taxation of Wealth Transfers. Section 10.08.

            Power of Attorney. Estate Planning Library of RIA Checkpoint. Thompson

            Reuters. N.d. Web. 14 Nov. 2012.



DelGallo.com Real Estate Website:  https://delgallo.com/LENDELGALLOREALESTATE.html
Leonard J. Del Gallo Jr., Broker Associate in Connecticut & Florida

CT Managing Broker: Berkshire Hathaway HomeServices N.E. Properties
www.bhhsneproperties.com
Office: 172 West Main Street
Avon, Ct. 06001   

FL Managing Broker: Park Place Realty Network, LLC
2500 W. Lake Mary Blvd, ste 220
Lake Mary, FL. 32746

Del Gallo Financial Services, LLC is a registered investment advisor and licensed insurance agency.
Leonard J. Del Gallo Jr., is an investment advisor representative of Del Gallo Financial Services, LLC and a licensed insurance agent.

Leonard Joseph Del Gallo Jr., a licensed Real Estate Broker Associate and independent contractor who helps clients with INVESTMENT, COMMERCIAL, & RESIDENTIAL property. Managing Brokers - Berkshire Hathaway HomeServices N.E. Properties in CT and Park Place Realty Network, LLC in FL - Berkshire Hathaway HomeServices and Berkshire's related companies & Park Place Realty Network, LLC are not affiliated with Del Gallo Financial Services, LLC. Visit: www.AVONCTREALESTATEAGENT.COM

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