2012-0703, Daniel Eaton v. Mary Eaton & a.

The petitioner, Daniel A. Eaton, appeals an order of the 8th

orally), for the respondents. Bradley & Faulkner, P.C., of Keene (Gary J. Kinyon on the brief and

on the brief, and Mr. Laboe orally), for the petitioner. Laboe Associates, PLLC, of Concord (Kerri S. Tasker and John E. Laboe to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as question of law that we review de novo. Schiavi v. City of Rochester, 152 N.H. p. 2 the power. This presents an issue of statutory interpretation, which is a

durable general power of attorney precluded the petitioner from acting under

the absence of an acknowledgment executed by the petitioner and affixed to the On appeal, the sole issue is whether the trial court erred in ruling that

therefore granted summary judgment for the respondents on that ground.

[for which the legal fees were claimed], as a matter of law.” The trial court

been acting as Mary Lou Eaton’s attorney-in-fact when he undertook the acts of RSA 506:6, VII(a) is mandatory and therefore Daniel Eaton could not have second argument, the trial court ruled that “the acknowledgment requirement

trial court from granting summary judgment. However, with respect to the

with regard to the respondents’ first and third arguments which precluded the The trial court found that there were genuine issues of material fact in dispute under the power of attorney was in connection with obtaining medical records.

the petitioner admitted under oath in a deposition that the only time he acted

lacked the acknowledgment required by RSA 506:6, VII(a) (2010); and (3) that the petitioner had no authority to act under the power of attorney because it pursuant to the power of attorney but for the petitioner’s own benefit; (2) that

three grounds: (1) that the actions taken by the petitioner were not done

executed in October 2004. The respondents moved for summary judgment on

attorney-in-fact pursuant to a durable general power of attorney, which was alleged that he was entitled to the fees because he acted as his mother’s sought payment of legal fees incurred during the guardianship proceeding. He

what the legislature might have said or add language that the legislature did interpret legislative intent from the statute as written and will not consider we ascribe the plain and ordinary meaning to the words used.” Id. “We scheme and not in isolation.” Id. “When examining the language of a statute, at 389. “Further, we interpret a statute in the context of the overall statutory expressed in the words of the statute considered as a whole.” Eaton, 163 N.H. 487, 489 (2005). “We are the final arbiter of the legislature’s intent as

In October 2010, the petitioner filed the instant action, in which he again

guardianship proceedings. Id. Michael objected, and the trial court denied the

Eaton’s estate, to pay the attorney’s fees the petitioner incurred during the

person and estate. Id. Thereafter, the petitioner filed a motion under RSA 464-

Michael, would be appointed guardian. Id. Shortly thereafter, the trial court

petition for guardianship over their mother, Mrs. Eaton. Id. at 388. The 393. In March 2010, Dean Eaton (Dean), the petitioner’s brother, filed a petitioner’s motion. Id. We upheld the trial court’s decision in Eaton. Id. at

A:43 (2004), requesting the trial court to order Michael, as guardian of Mrs.

found Mrs. Eaton to be incapacitated and appointed Michael guardian over her

2010 settlement agreement, the petitioner and Dean agreed that their brother, petitioner objected to Dean’s petition and filed his own petition. Id. In a June and affixed to the power of attorney. See RSA 506:6, VII(b) (2010) (“The

p. 3 authority to act pursuant to the power until the acknowledgment was executed However, according to the respondents, the petitioner did not have the the outset merely because it lacked an executed and affixed acknowledgment.

or both” on the principal’s behalf. Id. Third, it also informs the principal that fact the power to make decisions concerning the principal’s “money, property, other things, that the durable general power of attorney grants the attorney-in-

that the power of attorney was valid only in the sense that it was not void from

attorney-in-fact. RSA 506:6, VI(a). Second, it informs the principal, among

authority to do so.” Id. It also informs the attorney-in-fact that if his acts are

affairs.” Id. The acknowledgment further informs the attorney-in-fact not to person of ordinary judgment would act in carrying out that person’s own in view of the interests of the Principal and in view of the way in which a meaning of validity renders their agreement illusory. The respondents contend durable general power of attorney here was “valid,” their divergent views on the While the petitioner and the respondents purport to agree that the

First, it ensures that the principal made an informed decision to appoint an Principal is of sound mind when the Principal signs it.” Id. It ensures that the a fiduciary.” Id. The disclosure statement serves multiple purposes under the statute. acknowledgment . . . need not be signed when the durable power of attorney is

others unless the Durable Power of Attorney specifically gives [him] the

by a prudent person, which means the use of those powers that is reasonable

informs the agent that the durable general power of attorney “is valid only if the challenged, he has the burden of proving that he “acted under the standards of

has executed and affixed to it the required acknowledgment. “use the money or property for [his] own benefit or to make gifts to [him]self or sound mind.” Id.

this fiduciary duty, the attorney-in-fact must “observe the standards observed attorney-in-fact is aware that he owes the principal a fiduciary duty. Id. Under

burdens on, the attorney-in-fact as the principal’s agent. RSA 506:6, VII(a). It The acknowledgment explains the duties and responsibilities of, and authority to act” under the power of attorney unless the attorney-in-fact first

the principal has the power to revoke the power of attorney as long as she is “of “disclosure statement” by the principal, see RSA 506:6, VI(a), and a properly

not see fit to include.” Id. “We do not consider legislative history to construe a

RSA 506:6, VII(a) specifically states that an attorney-in-fact “shall have no executed “acknowledgment” by the attorney-in-fact, see RSA 506:6, VII(a).

power of attorney: it must have affixed to it both a properly executed In this case there are two pertinent requirements for a durable general

statute that is clear on its face.” Id. determination, see RSA 506:7, RSA 506:6, VIII(a)(2) cannot plausibly be read to

p. 4 as the instant proceeding may be considered to provide the occasion for such a a court has determined that the power of attorney at issue is valid. And insofar it does not apply in this case. With respect to RSA 506:6, VIII(a)(2), the petitioner does not contend that

excepting a power of attorney from the requirements of RSA 506:6, VII(a), and

a petition pursuant to RSA 506:7. (2) Has been determined by the court to be valid upon the filing of

execution; or (1) Is valid under common law or statute existing at the time of

As explained below, RSA 506:6, VIII(a)(1) provides the only possible basis for power of attorney in question from the need to comply with RSA 506:6, VII(a). requirement, unless another provision of the statute specifically excepts the

A power of attorney shall be valid if it:

must apply the law as specified in RSA 506:6, including the acknowledgement

RSA 506:6, VIII(a) states:

deciding whether a power of attorney has been or can be validly used, courts invalidate an otherwise valid durable power of attorney, subject to the 506:6, VIII(b) provides: “Failure to comply with paragraph VI or VII shall not

look to RSA 506:6, VIII(a) (2010), which sets forth the requirements for validity. determine whether the durable power of attorney is “otherwise valid” one must this exception applies only to powers of attorney that are “otherwise valid.” To

if doing so would contravene other provisions of RSA 506:6. To the contrary, in confer upon the courts an ad hoc authority to declare valid a power of attorney conclude that the petitioner misconstrues the meaning of the statute. RSA

an executed and affixed disclosure statement and acknowledgment. However,

sense would be inconsistent with the accepted usage of the word. See acknowledgment is not void from the outset, to define “valid” in this narrow a power of attorney that does not contain an executed and affixed despite the fact that it lacked an executed and affixed acknowledgment. We that he was entitled to act pursuant to the durable general power of attorney The petitioner, by contrast, relies upon RSA 506:6, VIII(b) (2010) to argue

creates an exception to the requirements that a power of attorney contain both provisions of RSA 506:7, IV(b)” (emphasis added). By its terms, this statute

power granted under the durable power of attorney.”). Although we agree that executed as long as it is executed prior to the [attorney-in-fact] exercising the

use the durable general power of attorney for its intended purposes. effective; efficacious”). Thus, to be “valid,” an attorney-in-fact must be able to (“valid” means “able to effect or accomplish what is designed or intended; Webster’s Third New International Dictionary 2 p. 5 529-30 (unabridged ed. 2002) 5 not covered by the exception. disclosure statements; powers of attorney that lacked an acknowledgment were attorney created by paragraph VIII(b) only powers of attorney that lacked attorney must be one that did not require these components to be valid at the without a disclosure statement and/or an acknowledgment, a durable power of

attorney. See RSA p. 5 506:6, VI, VII (Supp. 2003); see also Laws 2003, 312:4. At paragraphs V through IX to RSA 506:6. See RSA 506:6, V-IX (Supp. 2001); see connection with powers of attorney prior to 2001, when the legislature added

p. 5 506:7, IV(b).” amendment included within the exception for “otherwise valid” powers of shall not invalidate an otherwise valid durable power of attorney, subject to the provisions of RSA 2 Pursuant to Laws 2003, 312:4, RSA 506:6, VIII(b) stated: “Failure to comply with paragraph VI and VIII(b) are read together, it becomes clear that to be “otherwise valid” attorney explicitly authorizes such gifts.” RSA 506:6, V (Supp. 2001); see also Laws 2001, 257:1. is not authorized to make gifts to the attorney in fact or to others unless the durable power of acknowledgments mandatory components of durable general powers of 1 Under the 2001 legislation, paragraph V was added to RSA 506:6. It stated: “An attorney in fact statement, an acknowledgment, or both. See Laws 2005, 71:4. durable powers of attorney may include those that lack either a disclosure law did not address the use of disclosure statements or acknowledgments in interpretation. See Appeal of Union Tel. Co., 160 N.H. 309, 311 (2010) (“When under New Hampshire law.” and VII(a), a result that would be contrary to our settled rules of statutory VIII(b) in this fashion is the only way to avoid it contradicting RSA 506:6, VI(a) time it was executed. Construing the “otherwise valid” language of RSA 506:6,

subsections (a) and (b). RSA p. 5 506:6, VIII (Supp. 2003). However, the 2003

With the above statutory history in mind, when RSA p. 5 506:6, VII(a), VIII(a)

paragraphs VI and VII of RSA p. 5 506:6 to make disclosure statements and

RSA p. 5 506:6, VIII(b) to its present form, which makes clear that “otherwise valid” common law or statutory) in effect when they were executed. New Hampshire present requirements of RSA 506:6, were valid under the governing law (either 2 Id. In 2005, the legislature once again amended section shall render ineffective a durable power of attorney validly executed durable general powers of attorney which, although not complying with the

the same time, the legislature amended paragraph VIII of RSA p. 5 506:6 to include

It was not until 2003 that another statutory amendment revised

added paragraph VIII, which provided: “Nothing in paragraphs V – VII of this VIII(a)(1) is to function as a “grandfather” provision that serves to validate than mandatory. RSA p. 5 50 p. 6 6:6, VI, VII (Supp. 2001). The 2001 legislation also Based upon its terms, it is apparent that the purpose of RSA 506:6, provided for by paragraphs VI and VII of the statute, was discretionary rather disclosure statements and acknowledgements in powers of attorney, as also Laws 2001, 257:1. However, under the 2001 legislation, the inclusion of 6

misrepresentation.” within the meaning of RSA 50 p. 6 6:6, VIII(b). consideration “was authorized and was not a result of undue influence, fraud, or prerequisite to the use of the power, it does not qualify as “otherwise valid” burden of proving that a transfer of the principal’s property made for less than adequate RSA 506:7, IV(b), an attorney-in-fact acting under such a power, when challenged, must bear the in October 2004, after the date when an acknowledgment was a mandatory conferred by the first sentence of RSA 506:7, IV(b). Moreover, pursuant to the second sentence of pursuant to such “grandfathered” powers of attorney do not enjoy the presumption of lawfulness statute serves to make clear that, although the power may be valid, gifts or transfers made

components were not required, the “subject to the provisions of RSA 50 p. 6 6:7, IV(b)” language of the lack disclosure statements and/or acknowledgments if they were executed at a time when these Because the durable power of attorney at issue in this case was executed superfluous. We disagree. While RSA 506:6, VIII(b) permits the use of powers of attorney that 3 The petitioner asserts that our construction of RSA 506:6, VIII(b) renders RSA 506:7, IV(b) (2010)

statute.”). lead to reasonable results and effectuate the legislative purpose of the

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY and BASSETT, JJ., concurred. construe them so that they do not contradict each other, and so that they will interpreting two statutes which deal with similar subject matter, we will

err in granting the respondents’ motion for summary judgment.