Whitford v. Gaskill

In Whitford v. Gaskill, 345 N.C. 475, 480 S.E.2d 690 (1997), the North Carolina Supreme Court, in a case of first impression, affirmed this Court's conclusion that an attorney-in-fact may not convey real property by gift unless the power of attorney expressly confers the authority to make gifts of real property. In Whitford, the North Carolina Supreme Court noted that nearly every jurisdiction that had considered this issue had concluded: A general power of attorney authorizing an agent to sell and convey property, even though it authorizes him to sell for such price and on such terms as to him shall seem proper, implies a sale for the benefit of the principal, and does not authorize the agent to make a gift of the property, or to convey or transfer it without a present consideration inuring to the principal. Id. at 477, 480 S.E.2d at 691. The rationale behind this majority rule is that "an attorney-in-fact is presumed to act in the best interests of the principal," and a gift of the principal's property is potentially adverse to the principal's interests. Id. at 478, 480 S.E.2d at 692. "Such power will not be lightly inferred from broad grants of power contained in a general power of attorney." Id.