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.