Trustee Powers and Powers of Power of Attorney

[Just Mike]

What is the name of your state? California

My legal expertise is lacking. I am a retired Airline Captain. Please keep this in mind.

Five years ago I was given the title of "Power of Attorney" from an older man who I have known my entire life. Our families go back almost 100 years in this small farming community. As of a month or so ago he is living in an "assisted living facility". He owns a 40 acre ranch and has some money in a Schwab Account. He has plenty of money to pay for his facility the rest of his life. He is now 83 and has Dementia that is getting worse by the week. It was his idea to get into assisted living due to the fact he could no longer take care of himself alone on his ranch. My wife and I did a whole lot of work to get him where he now is.

A few weeks ago the attorney called me and thought it a good idea that as the "successor" trustee of his "living trust" that I now become the trustee. So, Bob resigned his position as his own trustee and I became the "trustee". So, bottom line, I am his "power of attorney" I am the "trustee" of his "living trust" and I am the "executor" of his "Will"

His Will gives the "whole" of his estate worth about 1.5 million to the "trustee" of his "living trust". The trust itself divides his estate into thirds when he passes away someday. The power of attorney is "broad and sweeping" and basically says I can do anything that he himself could do if he were able. The powers of the "trustee" basically says the same type of thing that the "trustee" can do whatever he or she wants at their discretion**************.

Yes, I am coming to a question. His original trust was set up 6 years ago but he never got around to signing it. He is that way. Five years ago he got around to signing it but the beneficiaries had changed.

He has a younger brother, sister in law, two nephews and a niece. They have never had much to do with one another their entire lives. Bob is 83 and has never married or had any children. I have a solid suspicion that Bob's trust was changed with the persuasion of his "sister in law". I know it is not what Bob wanted but at this point his mental condition is such that it would be "not right" to change things. His brother and sister in law are foaming at the mouth wanting his ranch. They will not get it. They dont' know this. I won't reveal any details to any of that family. They are all multi-millionaires and are greedy as a person can get.

Another individual who Bob always treated as a son was the only beneficiary in Bob's first "trust". A year later when he got around to signing the "trust" this one man was a one third beneficiary along with Bob's real niece and a niece who became a niece by marrying Bob's nephew. Kinda strange.

My question is this******************************************.Do I as "power of attorney" or as the "trustee" of his living trust have the Power to restore the trust to it's original state of which I firmly believe are the wishes of Bob**************..?

Just to give you and example of Bob's mental condition, read on. A month ago I was taking Bob to the attorney's office in my car. We were going in to sign the change of trustee paperwork. ON the way Bob asked me "maybe I should make a Will out" I told him he had already done that. While we were sitting in the office with the attorney after he had signed the resignation of trustee form and I had been made the "trustee" he asked the attorney, "should I make out a Will" ?. The attorney just looked at me and raised his eyebrows. This attorney is as honest a person as you will ever find on this planet and has done work for both my family and Bob's family for almost 50 years**************...

 

[curb1]

Interesting. Go back to that attorney that you trust. Find out the mental state of "Bob" when he changed the will. Why was the trust changed, and who changed it. There must have been a discussion with the attorney present. He might have very good insight about how and why the trust was changed.

You said, "His original trust was set up 6 years ago but he never got around to signing it. He is that way." How did he get out of the attorney's office without signing the trust? Were you there?

 

[tranquility]

As trustee, you are generally not going to be able to change the terms of the trust. The trust is the document which was signed and which property was titled to. As executor when he dies you will be required to follow the law and, if the will is valid, the will. (Which seems a pourover will--placing estate assets into the trust.)

If you are a power of attorney for him, you generally have the powers as limited by the POA document and by statute. Many states have statues which limit the powers in two ways. One in which the POA can't do and one in which the POA must ask court permission to do. I did not look up your state statutes, gifting things or changing heirs and/or beneficiaries is almost assuredly dealt with in the statutes or court cases. I find it unlikely you can do what you plan without permission from a court as you would need to amend or restate the trust and/or will. The change will almost certainly be challenged by the now-excluded relatives so you have to do it right.

 

[las365]

Are you the individual who was originally the sole beneficiary of the trust?

 

[Just Mike]

A month or so ago Bob was diagnosed with "dementia" by a neurologist. I do not know the degree of dementia however at this point. I am also his agent under his "advanced health care directive". It surely didnt' seem like much of an exam. I was in the room with he and the doctor and the doc just asked him a few questions and basically attempted to have a conversation with him about nothing in particular.

Actually, a month or so ago when we changed trustees we also made a "codicil" to his Will naming myself as "executor". The attorney said I could sign the "codicil" for him as his POA but as long as he is able to actually sign his name I preferred that he sign it himself which we did.

These things can be very touchy subjects I have found out. I think if one just acts honorably and with integrity and ignores all the arrows thrown at them by family members things will work out.

 

[curb1]

Just Mike,
I asked some questions above that are important if you think things "will just work out". Your idea of things "working out" are completely different than others in the family. Things will work out, but not necessarily as you envision. You need to face up to the problems that will develop. If you don't, this could easily drag on for years following death and the winners will be those representing both sides in a legal confrontation. The losers will be the families involved.

 

[Just Mike]

His Will is legal, his Trust is legal. It specifically spells everything out as far as distributions. I see no problems at this point. Oh, there will be jealousy etc. among some of the family members but the Will gives the entire estate to the Trustee of the Trust and then the Trust specifically says how things will be distributed. I don't see how it could be put together any better than it is right now. No one knows what the trust says except myself and the attorney and that is how it will stay.

From now until he passes away it is my job to manage the "trust" for HIS benefit and that is exactly what I intend on doing. He is in fairly good health with the exception of the "dementia" problem and I can see him living another ten years, maybe more.

 

[las365]

If you don't think there are any problems, why are you here? Just curious.

 

[curb1]

JustMike,
I don't see a problem if you follow the wishes of the Trust and will. You indicated earlier that you were not going to follow the desires of the will, or trust. What has changed from your earlier postings?

You said, "I have a solid suspicion that Bob's trust was changed with the persuasion of his "sister in law". I know it is not what Bob wanted but at this point his mental condition is such that it would be "not right" to change things. His brother and sister in law are foaming at the mouth wanting his ranch. They will not get it. They dont' know this. I won't reveal any details to any of that family."

Were Bob's brother and sister-in-law included in the will (before you say it was changed)? Why do you have a "solid suspicion" that the trust was changed? And, changed how? Why won't they "get the ranch", it the will says they will get it? Or does the will say that?

 

[Just Mike]

Bob's brother and sister in law are not in his Will or in his Trust. Never have been. No where did I say I would not honor the terms of the Will or Trust. I simply asked a question but now seem to getting attacked. I was under the impression this was a civilized forum for people to ask questions and get opinions. Apparently that isn't so.

The reason I know his trust changed is because I have a copy of both the one that was never signed and the one a year later**************.Like I said, I have known this family my entire life and that is why I know how they are. My Great Uncle and the Father of Bob were in the cattle business together almost 100 years ago. Both very honorable men.

Bob's brother and sister in law are the opposite end of the scale.

I think I have gotten some opinions but bottom line I will let the attorney tell me what is possible and what is not. I just thought it would be fun to talk with other people about these types of subjects but I can see that personal attacks are more fun for some folks. I am not really interested in that sort of childish behavior.

 

[Just Mike]

If you don't think there are any problems, why are you here? Just curious.

I am here to ask a few questions to see what other people think about certain situations. Or, is this only a forum for "problems". Sorry I invaded your territory.

 

[Just Mike]

Are you the individual who was originally the sole beneficiary of the trust?

I am not a beneficiary of anything. I am doing this because I was asked to do it by Bob prior to his dementia getting worse. He does not trust his brother's family.

 

[Dandy Don]

Was the trust prepared with the assistance of a trust attorney?

Does the will name any assets specifically that are not in the trust?

Having the will revert assets to the trust is a somewhat messy way of handling an estate, although that may have been what. A competent trust attorney would have all assets put into the trust and then subsequently have all assets specifically titled in the name of the trust so there is no question that the trust is where they belong, with the will being not even necessary unless there were forgotten assets. You as trustee need to make sure that all existing assets have been (by submitting proper forms/documentation) specifically titled with the name of the trust, and if the current attorney can not advise you how to do this please get counsel from another trust attorney.

You may not have authority to do this as POA but you do as trustee.

You also need to be finding out if the current attorney drafted the second trust, the one that added additional beneficiaries and look at the date signed to determine whether or not Bob's mental competence was open to question during the time he signed the second trust--if he had been diagnosed with dementia BEFORE that date, the second trust will be invalid thus leaving you in the position of having to figure out legally what will happen then.

Your newer trust attorney needs to review all documents to make sure that there is no legally valid position that the other relatives could have to either contest the will or the trust. Getting legal advice from a different attorney than the one you now have could help secure your position to make it ironclad.

DANDY DON IN OKLAHOMA ([email protected])

 

[Just Mike]

Was the trust prepared with the assistance of a trust attorney? YES, IT WAS.

Does the will name any assets specifically that are not in the trust? NO, ALL ASSETS WHICH BASICALLY ARE THE RANCH AND HIS MONEY IN A SCHWAB ACCOUNT ARE TITLED IN THE NAME OF THE TRUST.

Having the will revert assets to the trust is a somewhat messy way of handling an estate, although that may have been what. A competent trust attorney would have all assets put into the trust and then subsequently have all assets specifically titled in the name of the trust so there is no question that the trust is where they belong, with the will being not even necessary unless there were forgotten assets. You as trustee need to make sure that all existing assets have been (by submitting proper forms/documentation) specifically titled with the name of the trust, and if the current attorney can not advise you how to do this please get counsel from another trust attorney.

THE SAME ATTORNEY DRAFTED THE ORIGINAL TRUST AND THE SECOND ONE. I JUST NEED TO ASK HIM WHY THE CHANGE.

You may not have authority to do this as POA but you do as trustee.

You also need to be finding out if the current attorney drafted the second trust, the one that added additional beneficiaries and look at the date signed to determine whether or not Bob's mental competence was open to question during the time he signed the second trust--if he had been diagnosed with dementia BEFORE that date, the second trust will be invalid thus leaving you in the position of having to figure out legally what will happen then.

Your newer trust attorney needs to review all documents to make sure that there is no legally valid position that the other relatives could have to either contest the will or the trust. Getting legal advice from a different attorney than the one you now have could help secure your position to make it ironclad.

DANDY DON IN OKLAHOMA ([email protected])

Dandy, The attorney is VERY COMPETENT AND HONEST. This is what he does and has for years following in his fathers practice.

See another thread I just started titled, Thief invades mans home.

His dementia was not diagnosed until after the change in trust beneficiaries. I could have him sign a new trust reverting it back to it's original state but I would not feel comfortable doing that. Regardless of my personal feelings it just would not be right to alter what is now in writing. My original question was just that, a question, I did not mean to indicate I would do this if I had the power.

I personally believe this situation is as Ironclad as it gets.

As I attempted to explain to someone else, I am just here on this forum for entertainment and to explore and learn about these things since I am now in the position to need to know about these things.

 

[tecate]

You say that Bob's attorney has represented your family and his for many years. Does Bob's attorney represent you also in this matter? If you think so, are you sure? If not, are you doing all of this DIY? If not, what does your attorney say about all of this?