- 16 - less than full and adequate consideration if, at the time of decedent’s death, the enjoyment of the property was subject to the decedent’s power to alter, amend, revoke, or terminate. See sec. 2038(a)(1). Respondent asserts that decedent had the power to revoke the gifts made by Ms. Thompson to decedent’s three daughters and their husbands on December 30, 1993, and January 18, 1994 (the gifts), because the powers of attorney did not authorize Ms. Thompson to make gifts of decedent’s real property; therefore, the gifts must be included in decedent’s gross estate. Petitioner contends that the powers of attorney authorized Ms. Thompson to make the gifts and that, therefore, the gifts are not revocable. The legal effect of gifts made pursuant to a power of attorney is determined according to State law. See Morgan v. Commissioner, 309 U.S. 78 (1940). Oregon has not established, either through case law or statute, a bright-line rule flatly prohibiting gifts by attorneys-in-fact to themselves or to third parties absent express written authorization in a power of attorney.12 Consequently, we must examine Oregon law, and decide 12Numerous jurisdictions have adopted the rule that “an agent lacks authority to make a gift of the principal’s property unless that authority is expressly given by the language of the power of attorney.” Kunewa v. Joshua, 924 P.2d 559, 565 (Haw. Ct. App. 1996); see also Townsend v. United States, 889 F. Supp. 369, 371-372 (D. Neb. 1995); Aiello v. Clark, 680 P.2d 1162, 1166 (Alaska 1984); In re Estate of Crabtree, 550 N.W.2d 168, 170 (Iowa 1996); Whitford v. Gaskill, 480 S.E.2d 690, 692 (N.C. (continued...)Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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