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the power of attorney does not explicitly so state. Where the
highest court in the State has not ruled on a particular point,
our task is to give "proper regard" to the relevant rulings of
the State's lower courts in determining the law. Commissioner v.
Estate of Bosch, 387 U.S. 456, 465 (1967).
In recent cases involving gifts by attorneys-in-fact to
themselves and third parties, lower New York courts have
consistently invalidated the transfers absent a showing that the
power of attorney explicitly authorized them. See Semmler v.
Naples, 563 N.Y.S. 2d 116 (A.D. 3 Dept. 1990); Moglia v. Moglia,
533 N.Y.S. 2d 959 (A.D. 2 Dept. 1988); Matter of Griffin, 611
N.Y.S. 2d 743 (Surr. Ct. 1994); Estate of Iannone, 431 N.Y.S. 2d
904 (Surr. Ct. 1980); Estate of DeBelardino, 352 N.Y.S. 2d 858
(Surr. Ct. 1974), affd. 363 N.Y.S.2d 974 (A.D. 4 Dept. 1975);
Gaughan v. Nickoloff, 214 N.Y.S.2d 487 (Sup. Ct. 1961); In re
Robertson's Estate, 81 N.Y.S.2d 286 (Surr. Ct. 1948).
In Semmler, the decedent's son, acting pursuant to a power
of attorney, closed all of the decedent's bank accounts prior to
her death and deposited the funds in an account held jointly by
himself and his sister. The decedent's grandchildren, who were
also beneficiaries under the will, brought suit to have the
diverted funds declared an asset of the estate. The Appellate
Division affirmed the Supreme Court's judgment that the funds
were an asset of the estate. The Appellate Division noted that
the power of attorney did not explicitly authorize gifts and held
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