Metropolitan News-Enterprise


Wednesday, June 12, 2019


Page 1


Court of Appeal:

Attorney-in-Fact Exceeded Powers by Conveying To Himself Real Property Owned by Principal


By a MetNews Staff Writer


An attorney-in-fact for a Catholic priest who conveyed to himself two houses owned by the priest, one day before his death, will not be permitted to retain title, under a decision yesterday by the Fifth District Court of Appeal.

The unpublished opinion, by Acting Presiding Justice Bert Levy, reverses an order denying a petition by the personal representative of the estate of Father Juan Enrique Fierros to set aside the conveyances to Agustin Guzman. The opinion reverses an order by Andrew Kendall, a pro tem Kern Superior Court judge, who described Guzman as “the gardener, business partner, sometime caretaker and friend of the decedent,” who died intestate.

Levy wrote:

“….Father Fierros’s power of attorney provided the following notice to Mendoza as the person accepting the appointment as attorney-in-fact: ‘You may not transfer the principal’s property to yourself without full and adequate consideration or accept a gift of the principal’s property unless this power of attorney specifically authorizes you to transfer property to yourself or accept a gift of the principal’s property.’ Further, as the trial court correctly found, the power of attorney does not explicitly authorize Mendoza to transfer Father Fierros’s property to himself as a gift or without full and adequate consideration.”

He went on to say that if there were any possible uncertainty, “of which there is none,” Probate Code §4264 would remove it. Levy quoted the relevant portion as saying:

“An attorney-in-fact under a power of attorney may perform any of the following acts on behalf of the principal or with the property of the principal only if the power of attorney expressly grants that authority to the attorney-in-fact: [¶] … [¶] (c) Make or revoke a gift of the principal’s property in trust or otherwise.”

The jurist declared:

“The legal effect of an attorney-in-fact purporting to make a conveyance of real property to himself as a gift where such an action is beyond the powers conferred in the power of attorney is that the conveyance is void.”

The case is Estate of Fierros, F077839.


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