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Motion Brought to Change the Domicile of the Decedent


A motion has been brought before this court to determine whether a domicile of the decedent was changed from New York State to Texas. The facts indicate that on July 5, 1983, the decedent, signed a Power of Attorney appointing his grandson, as his attorney-in-fact. The document was in standard form with a clause stating, this Power of Attorney shall not be affected by the subsequent disability or incompetence of the principal.”

Around August of 1983, the decedent’s mental and physical condition deteriorated as he was suffering from Alzheimer’s disease. As a result, he eventually was placed in the Gowanda Nursing Home on February 13, 1984. In June of 1984, having difficulty administering his grandfather’s affairs, the grandson who lived in Texas, moved his grandfather to a nursing home located in Texas. Three weeks later, the decedent died. However, prior to his death, the bulk of his assets had been transferred to Texas and preliminary negotiations for the sale of his home in New York were already underway. The actual contract for the sale of his residence was signed on September 28, 1984, after his death. The issued presented by this case is whether the donee of a Power of Attorney, the grandson could change the domicile of the donor, the decedent.

Although this question is one of first impression, there are several cases which the court has considered in reaching its decision. The first case is Matter of Webber, 187 Misc. 674, 64 N.Y.S.2d 281, Surrogate’s Court, Kings County, June 1946, which stands for the proposition that a fiduciary may change his ward’s residence but ordinarily cannot change his ward’s legal domicile. In the Webber case, the decedent, a domiciliary of Kings County, was adjudicated incompetent. Subsequently, she was removed from Kings County and took up residence in a hospital in Westchester County. During her stay at the hospital in Westchester County, the committee of her property with the consent of the committee of her person, sold her dwelling in King’s County as well as all of her personal belongings.

The respective distributees questioned the jurisdiction of the court in probate proceedings, claiming that the decedent at the time of her death was domiciled in and a resident of Westchester County. The court did not accept their contention, pointing out that an adult incompetent retains the domicile that he or she had at the time that he or she became incompetent. The reasons given by the court were as follows: A change of domicile from one county within a State to another, or from one State to another State, or from one country to another country, might involve many changes in civil and property rights, such as citizenship, taxability and descent and distribution of property or the validity of any testamentary disposition made prior to his becoming incompetent. The very statement of the effect of a change of domicile should clearly indicate that a committee of the person has no right to effect a change of domicile, although he may have the power to effect a change in abode. Certainly the power to change a domicile of an incompetent person, if vested anywhere is vested in the State acting through the Supreme Court in its function as parens patriae.

Obviously, the court in reaching its decision was fully cognizant of the possibility of forum shopping if the power to change the domicile was vested in the committee, and the inequitable consequences that might result therefrom; requoting above, “A change of domicile might involve many changes in property rights, such as descent and distribution of property.” For example, the court might have been contemplating a situation where a decedent had no Will, and the fact pattern is such that a son of a previous marriage attempted in a fiduciary capacity, either as a conservator, committee or under Power of Attorney, to change the domicile of the decedent for his own personal benefit. That is to say, suppose he moved the decedent to a state where the laws of intestacy would enhance his share to the detriment, let us say, of children born to the decedent by way of a subsequent marriage. Of course, the obvious inequities resulting in such a case are not present here. Nevertheless, the court cannot overlook the effect of a potential decision vesting the power to change domicile in the Power of Attorney.

The court said, after enunciating its doubts as to the right to change domicile, set forth certain objective criteria to justify a finding of domicile: While we are unable to share the Surrogate’s confidence that a guardian’s or a committee’s right to change the domicile or residence of their ward or charge is without doubt, there being no statutory or decisional authority finally settling the issue, we reach a like conclusion because, here, as in Matter of Corr v. Westchester County Dept. of Social Servs. The objective criteria of (1) a long prior relationship with New York establishing a lifetime of connection with this State, (2) the highly probable fact that Sharon will live out her life in New York, (3) the abandonment of California as a residence and the judicial confirmation of that fact, (4) the absence of any abode other than New York, and (5) the fact that her parents and relatives, who can provide the intangibles of love, affection and attention that might aid in her recovery, all reside in the area of this State where she is presently hospitalized, compel the conclusion that Sharon Gibbs should be determined to be a resident of New York within the meaning of section 366 (subd 1, par [b] ) of the Social Services Law.

As one can readily see, the facts involved here do not meet the criteria set forth in Gibbs. For example, prior to being rendered incompetent, Sharon Gibbs had expressed an intention of relocating back to New York State. In our case, there was never an intent expressed by Mr. Wilhelm to change his domicile from New York to Texas. In Gibbs, there was a lifelong relationship with New York State. As a matter of fact, the first 23 years of her life were spent in New York State, whereas here, Mr. Wilhelm lived most of his life in New York State and was only in Texas for the last three weeks of his life. Finally, both the Gibbs and Webber cases dealt with court-appointed fiduciaries–Webber, a committee and Gibbs, a conservator, who concededly acted under the aegis of the court.

Beyond Webber and the objective criteria of Gibbs, pointed out that a durable Power of Attorney is not limitless. As a matter of fact, the authority is non-delegable when it deals with matters “peculiarly personal” and where it does not impinge on the efficacy of the powers of the attorney-in-fact. That is to say, if the question of domicile is one of personal concern and has no bearing on the actions of the agent to care for the principal, then the agent has no authority to act. This very principle can be clearly illustrated by the facts in Gibbs. If a Power of Attorney had been involved in that case, the authority to act by the Power of Attorney would have had a direct bearing on the agent’s ability to care for the principal, namely, to obtain New York State Medicaid. Here, the status of the decedent as a New York domiciliary did not, in any way, constrain or inhibit the grandson’s ability to secure medical attention and care for the decedent in Texas. As a matter of fact, the question of domicile in no way inhibited the grandson’s authority to act as the alter ego for the decedent, not only for his care but as to any matters dealing with the administration of the decedent’s affairs.

Wherefore, it is the finding of this court that the attorney-in-fact did not have the authority to change the domicile of the decedent, the donor of the Power of Attorney.

If the court has no jurisdiction over the probate of the estate due to domicile, you will need the help of Stephen Bilkis and Associates in order to contest the validity of the probate proceeding. They have offices throughout to serve you, including locations in Manhattan, Queens, the Bronx, Brooklyn, Staten Island, Suffolk County, Nassau County and Westchester County.

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