dissenting.
[¶ 19] I respectfully dissent. I would reverse the district court judgment and remand this matter to the North Dakota Department of Human Services for a rede-termination of Minnie Makedonsky’s (“Makedonsky”) eligibility for Medicaid benefits. Because Makedonsky made completed gifts without undue influence, she has no legal ability to make the gifted property available under N.D. Admin.Code § 75-02-02.1-25. The Statement of Intention to Gift signed by Makedonsky acknowledged that she made those gifts and, even if treated as a mere ratification, it related back to the date of the transfers Makedonsky made to her daughters. I would further hold that the amounts transferred before the thirty-six month look-back period and acknowledged or ratified by the Statement of Intention to Gift were not available to her for purposes of determining her Medicaid eligibility.
[¶ 20] The majority opinion makes the same error of law the ALJ made. The majority misinterprets N.D. Admin. Code §§ 75-02-02.1-25 and 75-02-02.1-33.1(8) and ignores agency law.
[¶ 21] Assets that are “actually available” must be considered in determining eligibility for Medicaid. N.D. Admin. Code § 75-02-02.1-25(1). Assets are “actually available” when “the assets are at the disposal of the applicant, recipient, or responsible relative who has a legal interest in a liquidated sum and that person has the legal ability to make the sum available for support, maintenance, or medical care.” Estate of Pladson v. Traill Co. Social Services, 2005 ND 213, ¶ 10, 707 N.W.2d 473 (citing Estate of Gross v. North Dakota Dep’t of Human Servs., 2004 ND 190, ¶ 8, 687 N.W.2d 460); see N.D. Admin. Code § 75-02-02.1-25. “Interpretation of the ‘actually available’ requirement must be reasonable, and the focus is on the applicant’s actual and practical ability to make an asset available as a matter of fact, not legal fiction.” Opp v. Ward Co. Social Services Bd., 2002 ND 45, ¶ 11, 640 N.W.2d 704 (emphasis added). The majority relies on the premise that until Make-donsky signed the Statement of Intention to Gift she could have brought a legal action to have the gifts returned to her. The majority ignores that her legal cause of action would have been unsuccessful.
[¶ 22] Makedonsky made gifts to her daughters, including the daughter who executed some of the gift documents as Mak-edonsky’s agent. A gift is a transfer of personal property made voluntarily and without consideration. N.D.C.C. § 47-11-06. The requirements for a valid inter vivos gift are: (1) an intent to give; (2) delivery of the gift, either actual or constructive; and (3) an acceptance of the gift by the donee. Kolouch v. Bond, 219 N.W.2d 132, 134 (N.D.1974). The record *193indicates that those requirements are met. All documents necessary to transfer the gifted items and to record the transfer of the real property interests appear of record. The transfers were complete and Makedonsky, as the donor of completed gifts, had no legal ability to compel the return of the property. See Zeman v. Mikolasek, 75 N.D. 41, 53, 25 N.W.2d 272, 279 (1946) (quoting Ramsdell v. Warner; 48 N.D. 96, 183 N.W. 281, 283 (1921) (stating “To have the effect of a valid gift, therefore, the transfer of possession and title must be absolute and go into immediate effect, so far as the donor can make it so by intent and delivery, and must be so complete that if he again resumes control over it without consent of the donee he becomes liable as a trespasser.”)).
[¶ 23] Some of the documents to complete the gifts were executed by daughter JoAnn Makedonsky, Makedonsky’s agent under a Durable Power of Attorney, and not merely under the statute as the majority asserts in ¶ 12. “Every act which legally may be done by or to any person may be done by or to the agent of such person.” N.D.C.C. § 3-02-01. The mere fact the gifts were completed through an agent does not negate the effectiveness of the act. The exception to this is when an agent violates the agent’s duty in circumstances giving rise to a presumption of undue influence. The Department wants Makedonsky to bring a lawsuit attacking the transfer on the basis of a statutory rebuttable presumption that the gifts to JoAnn Makedonsky, as trustee, were without sufficient consideration and made under undue influence.
[¶24] Under N.D.C.C. § 59-01-16 (2006), a transaction whereby a trustee gains an advantage from the beneficiary is “presumed to be entered into by the latter without sufficient consideration and under undue influence.” See 2007 N.D. Sess. Laws ch. 549, § 27 (repealing N.D.C.C. ch. 59-01 and enacting the N.D. Uniform Trust Code, § 59-09-01 et. seq.). When an agent gains such an advantage, the burden is on the agent to rebut the presumption. Mehus v. Mehus, 278 N.W.2d 625, 632 (N.D.1979). In this case, the presumption of undue influence arose because Makedonsky’s agent, her daughter JoAnn, received gifts from Makedonsky. This presumption was overcome, however, when Makedonsky executed the Statement of Intention to Gift. By signing the Statement, Makedonsky made clear that it was her intent to give, that she made the gifts, and that she was under no compulsion to do so. The Department accepts the validity of the Statement because it treats the date on which the Statement was signed as the date Makedonsky relinquished her right to reclaim the gifts. Because the gifts were valid and the presumption of undue influence was overcome, Makedon-sky has no legal ability to compel the return of the property. To suggest otherwise would be to suggest that Makedonsky must perjure herself in order to attempt to undo an intentional, completed gift. That would involve a legal impropriety, not a legal obligation. Makedonsky has no legal interest in the gifted property and no legal ability to obtain the assets. See Zeman, 75 N.D. 41, 25 N.W.2d 272. Those given away outside the look-back period are not available under N.D. Admin. Code § 75-02-02.1-25 for purposes of determining eligibility.
[¶ 25] The majority treats the Statement of Intention to Gift as a mere ratification although its content indicates it was not intended merely to ratify the prior acts of Makedonsky’s agent, but rather to show that the acts previously done through her agent were, in fact, Makedonsky’s own acts at the time they were made. The Statement provides, in part:
*194I, Minnie Makedonsky, state and memorialize that, as a reflection of my love and affection, I made previous gifts of cash, life insurance, and a remainder interest in my home totaling $148,703.77 to my children, including my daughter and attorney-in-fact, JoAnn Makedon-sky. I was not influenced by anyone, including JoAnn, in any way to make these gifts and I did it freely and voluntarily. Likewise, I intend to continue making future gifts of my assets to my children, including JoAnn, or any other child that may serve as my attorney-in-fact, and my intention to make future gifts to my children or any trusts in which my children are beneficiaries has not been influenced by any of my children in any way.
(Emphasis added.)
[¶ 26] Makedonsky, therefore, established that any legal action brought within the thirty-six month look-back period would have been unsuccessful. The transfers were made by Makedonsky, as a matter of fact, on their original dates.
[¶ 27] The Department has stipulated that Makedonsky was a competent individual and accepts this Statement as Make-donsky’s valid act. For purposes of eligibility, the Department cannot have it both ways. It cannot treat the Statement of Intention to Gift as a valid act, a document of legal significance executed by a competent person, but ignore its contents. The Statement is clear that Makedonsky herself made those gifts, that it was her intention to do so, and she was not under undue influence.
[¶ 28] Even if the Statement of Intention to Gift is treated merely as a ratification, the law applicable to ratifications indicates that the ratification would relate back to the date of transfer, thus treating those gifts made outside the look-back period as not available for purposes of determining eligibility.
Elf 29] The majority ignores the legal effect of a ratification. The Statement made in September 2005, if a ratification of the gifts, related back to the actual date of the transfers. Ratification is “[t]he affir-mance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him.” Askew v. Joachim Mem’l Home, 234 N.W.2d 226, 237 (N.D.1975) (quoting Restatement (Second) of Agency § 82, at 210 (1958)). Ratification is equivalent to an original grant of authority. 12 Richard A. Lord, Williston on Contracts § 35:22, at 272-73 (4th ed.1999) (citation omitted). Ratification “relates back and supplies original authority to execute the contract.” Id. at 270; see also Lewis v. Washington Metro. Area Transit Auth., 463 A.2d 666, 672 (D.C.App.1983) (principal “is bound by the agent’s act nunc pro tunc”). As is explained in the Restatement (Second) of Agency,
The concept of ratification is not a legal fiction, but denotes the legal consequences which result from a series of events beginning with a transaction inoperative as to the principal, and ending in an act of validation. The statement that there is a relation back to the time of the original act is fictitious in form, but in effect, it is a statement of liabilities. The concept is unique .... it operates as if the transaction were complete at the time and place of the first event, rather than the last ....
Restatement (Second) of Agency § 82 cmt. c. (1958) (emphasis added).
[¶ 30] When these ratification principles are applied to Makedonsky, the ratification by Makedonsky of any gifts made before the look-back period would relate *195back to the date of the original transfers and would supply original authority to execute the transfers. Thus, the dates on which those transfers were made would remain the dates on which the transfers occurred for purposes of determining Mak-edonsky’s Medicaid eligibility. The effective dates of the gifts would not be September 2005, the date on which she signed the Statement of Intention to Gift.
[¶ 31] To support its rejection of Make-donsky’s claim that her ratification of the gifts in September 2005 was retroactive to the actual date of the transfers, the majority cites Mehus v. Mehus, 278 N.W.2d 625 (N.D.1979), and Askew v. Joachim Mem’l Home, 234 N.W.2d 226 (N.D.1975). Neither of these cases addresses whether a principal’s subsequent ratification of an agent’s act relates back to the date of the agent’s original unauthorized act. Both cases are distinguishable from Makedon-sky’s case.
[¶ 32] In Mehus, we affirmed a district court decision affirming an order of a county probate court that a son who served as coattorney-in-fact for his mother was not entitled to savings certificates he purchased with his mother’s assets and held with his mother as a joint tenant with right of survivorship. 278 N.W.2d 625. We reached that conclusion because the son did not overcome the statutory presumption of undue influence. Id at 634. The son purchased the saving certificates. Id. at 628. The mother ratified the son’s purchase of the savings certificates by implication. Id at 631. However, we held that the trial court’s finding that the son failed to overcome the presumption of undue influence was not clearly erroneous. Id at 633. In this case, even if the Statement is treated as a mere ratification, it is express, not implied. The Statement itself, accepted by the Department, is the “credible evidence that the fact presumed does not exist” as required by N.D.R.Ev. 301 and there is no evidence in the record to the contrary.
[¶ 33] In Askew, the board of directors of an association that operated a retirement home did not expressly ratify an agreement entered into by the association’s president with another party. 234 N.W.2d 226. We held that the agreement was enforceable because it was ratified by the board of directors by implication. Id at 239. Evidence of ratification existed because the board of directors “acted in such a manner that it voluntarily assumed the responsibility of the terms of the originally unauthorized agreement ... without making reasonable inquiry into the nature of the terms contained in that agreement.” Id at 238. Like Mehus, whether the board’s ratification related back to the date of the initial agreement between the board of director’s agent and the third party was not at issue in Askew.
[¶ 34] Here, the ALJ did not question the validity of Makedonsky’s Statement of Intention to Gift executed subsequent to the transfers to her daughters and impliedly found Makedonsky made an express ratification of the gifts. The recommended findings of the ALJ adopted by the Department and affirmed by the district court stated,
Minnie had the right to have the assets returned to her until she signed the Statement of Intention to Gift on September 8, 2005.... The gifts were revocable until Minnie executed the Statement of Intention to Gift, at which time she ratified the gifts and her statement became in effect, her release of her chose in action.
The ALJ then concluded that “the transfer became complete when Minnie signed the Statement of Intention to Gift on September 8, 2005.” The ALJ wrote,
In this case, the disqualifying transfer occurred when Minnie executed the *196Statement of Intention to Gift on September 8, 2005, and no longer had any lawful means of undoing the transfers or requiring a restoration of ownership of her assets. It was on that date that she gave up the right to revoke the gifts and have her assets returned to her. That date falls within the thirty-six month look-back date. Therefore, the assets transferred by her attorney-in-fact are considered disqualifying transfers under Medicaid rules in N.D. Admin. Code § 75-02-02.1-33.1.
(emphasis added).
[¶ 35] When the ALJ considered whether Makedonsky overcame the presumption of undue influence, the ALJ failed to consider the effect of an express ratification of the transfers. A principal can consent to conduct by an agent that would otherwise constitute a breach of the agent’s duty. Restatement (Third) of Agency § 8.06 (2006). The Restatement provides that a principal’s consent will be valid, provided,
(a) in obtaining the principal’s consent, the agent
(i) acts in good faith,
(ii) discloses all material facts that the agent knows, has reason to know, or should know would reasonably affect the principal’s judgment unless the principal has manifested that such facts are already known by the principal or that the principal does not wish to know them, and
(iii) otherwise deals fairly with the principal; and
(b) the principal’s consent concerns either a specific act or transaction, or acts or transactions of a specified type that could reasonably be expected to occur in the ordinary course of the agency relationship.
Id. When “a principal consents after-the-fact to action taken by an agent that would otherwise breach the agent’s fiduciary duty to the principal, the principal has the opportunity to assess what the agent has done with a degree of specificity not available before the agent takes action.” Id. at cmt. b.
[¶ 36] Here, if Makedonsky’s Statement is treated as a ratification, the validity of which the ALJ acknowledges in the recommended findings and conclusions, the Statement rebutted the presumption of undue influence, related back to the original date of the transfers to Makedonsky’s daughters and supplied original authority to execute the transfers. Makedonsky had the opportunity to assess the earlier transfers to her daughters. The Statement of Intention to Gift reveals that Makedonsky “freely and voluntarily” consented to the transfers, and “freely and voluntarily” executed the Statement of Intention to Gift. Her “ratification” of the transfers related back to the original date on which the transfers occurred. Makedonsky established there was no viable legal action to compel the return of the property. Thus, any of the transfers at issue in this case made before the thirty-six month look-back period were not relevant to Makedon-sky’s Medicaid eligibility determination.
[¶ 37] For these reasons, I would reverse the district court judgment and the decision of the North Dakota Department of Human Services and would remand for a redetermination of Minnie Makedonsky’s eligibility for Medicaid benefits. The property transferred before the thirty-six month look-back period was not available to her for purposes of determining her Medicaid eligibility.
[¶ 38] MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ„ dissent.