there's a general grant of power point basically says if the principal could do it you can't do it there's an interpretation clause that says this shall be construed as a non statutory power of attorney and that you numeration of specific items does not limit  durable powers granted if you're in there's a case that suggests otherwise but i think it's easily distinguishable that's for your more like i don't think there's any case that says that and not statutory was a clause in there that appointed the agent well with respect to powers as defined in section three point four of the short form statutory power of attorney act section three point four specifically disallows change appendix of the baby powers allied allow the agent to acquire and redeem certificates of deposit at no time did the agent change the beneficiaries of c d s that had not matured you redeem thousands maybe tens of thousands of non statutory powers of attorney out there if we take a police position at least position that unless the non statutory power of attorney specifically authorizes that act then i would think that there have to be hundreds of thousands of transactions there were authorized under the general grant a public clause but not specifically enumerated in the non could do regarding the certificates of deposit once they reach earth vs there is a single limitation he can't there's a presumption that he can't deliver to his benefit if he does he have to overcome that presumption but other than that then you could spend it only if it didn't affect him during his life and during his death of course it went to walter nichols the age of kendall being the principal kendall nichols being the principal but did not benefit if but overcome that presumption with proof and that's why i think judge bill says order in regard to the witnesses is incorrect too in the sense that he op thinks i'm calling witnesses or he suggested in his order that i'm calling witnesses to clear  any ambiguity that would allow evidence to be considered ambiguity in the in the certificates of deposit or the power of attorney i'm not i'm calling witnesses to overcome the presumption that my client client so feeling in the principal's property is fraught and i can overcome that production presumption the dead man's act doesn't prevent me calling thank witnesses it prevents people who have a direct interest in the outcome of the litigation i'll ask for these transactions who are not directly interested so and i think there's a couple of red herrings if i may suggest that there's an argument or perhaps that the non statutory power of attorney was not executed or witnessed as a statutory powers of attorney would be and the power of attorney act section three op indicates that nothing in this act invalidates or bars a different form or that it must be fact i wish i had made an offer proof but i i mean my position would be that if you rule this is the balance our attorney in you overturn judge tells in that regard we're going to go back to court and i think at that point i can convince him that witnesses can testify off not to explain either the certificate of deposit or the power of attorney to overcome the presumption of fraud your honor absolute right to understand then you think your first i believe that the only thing that that no i do not believe that's required but i believe that the only thing that the agency required to do is to carry out candles principles wishes to do with the principle wants him to do and them no my but yet your argument that these general powers and the power of attorney give them the right to do anything unless what would you mean exam maybe this is my difficulty give me an example so she said let's roger look in the context of this case what would be something we just have essentially an assumption i understand but but we're not here to overcome the presumption prop we're here to push the issue is this is power turning ballot if it doesn't authorize him to do what he did it doesn't make any difference whether he was  i believe the order said after careful consideration the court finds and durable power of attorney did not allow respondent name were changed beneficiaries of the fifty deposit in this case the court finds no authority that would allow walker beneficiary himself as opposed to and secondly i just think that our that nine statutory powers of attorney do not have to specifically enumerated every single provisions that we think would have thrown out if if the talent had gotten by that issue with its fourth and ten independent third party witnesses to argue that this was his intent doesn't do that well i'm just waiting to try to understand your argument in the scope of what you're wanting us to say this to but he is arguing you are arguing that all kinds of powers of attorney would not be valid mr what you just said maybe he's right that's your position well we are our initial position is that the subject power of attorney nine what the kendall nicole the principal wanted him to do and we were sustained on that and then also with respect to the bank employees we argued that that they could not the bank  which is a fourth district case that says that you can't make an argument where verbal guidelines will change any any will that's under the probate at the first arts district court said that that or even if the principal had been there and it buys the bank that they that she wanted changes made it wasn't sufficient because the the agreement contract and if there had been a new contract entered into between a bank and walter kaye nicole's agent i think that you would have something there but there were there was no the agent walter nichols never signed any agreement the bank if he's not on any signature card other than when he became co executor we also think that if you look at the only power of attorney power of the individual to authorize an agent to make financial and health care decisions for the individual in the case here we've got walter nichols making decisions for himself he wasn't representing well that's how it appears but what if this was kendall's which then it should have been done right it should have been a contract that was entered into your your position and something where your sphere stu come up with a statement there would have brought effect the powers of attorneys here i'm not sure it's either correct or you what i want to do to your position that's still not enough yes or it should have been should been changed in writing should have been a contractual so that i mean that change in writing by the fellow with the power of attorney isn't enough more evidence in those words yes or and again in this case and if you look at the thirty issues raised in my brief we restated the bank employees are far from testifying with respect to any it says no argument has been made by the executor of that the direction to him to distribute in accordance with the testator's verbal guidelines as provided paragraph or it's a valid testamentary disposition no such argument  that situation  the tax powers there there's clearly an effort to recognize that yes may be made again it would be my view that that would be for the position of reducing the state tax but i suppose what i'm getting to is me asking if this is the evidence here in question that is if there is sufficient evidence that this is what the principals wishes are that it seems to be the person who holds the power of attorney should pretty cable bank right and in order to change the fact they have they have to be in writing it it has to be but isn't the whole purpose of a power of attorney for a third person to be empowered to asian acts in bad faith and again i think we're we're back to that for nicole's changing about six hundred thousand dollars from sharing with his sister attorney that we have non statutory clearly wouldn't qualify under satch torrie because that specifically requires that the power to change beneficiary be included were saying even  dearborn doesn't apply for dearborn power tourney about section three point four the power of attorney act which specifically says that the agent can't change beneficiaries but says or dearborn does that say even if this was not  that's how i read it but anyway this is an interlocutory appeal we never got to the question of fraud we never got to there the courts have this power of attorney didn't authorize him to do it the court wouldn't hear testimony about whether overcame the presumption of fraud because we never got to that you know what amazes me about this case is you didn't make the offer proof and now you're up here using that as a tool to make your argument well we didn't make an offer proof if i said that the case because we never got to that point we never got to the point where whether or not evidence overcame the presumption of fraud could be introduced the court said just aren't attorney did not allow him to do it think it matters that the c d s had already mature and technically he wasn't changing the beneficiary on it presently existing cd i do think it matters i think it allows mr walter nichols to do what he did i don't think the signature card is important the court order in regard to witnesses is there's no egg ambiguity that would allow all evidence to be considered by the court and and i think he was focusing on they either the power of attorney or the certificates of deposit themself not evidence of overcoming presumption