OT:John T, Estate, guardianship, POA? kinda long

redtom

Well-known Member
First, I am well aware I need to seek counsel with an atty in real life. But, that is one of my questions. I will condense this: Aunt and Uncle childless, Me and bro co trustees of living trust. They are starting to fail in mind and body but still able to "live" alone. I would like medical POA for their wishes. General POA would be ideal. I have fear that other nephews just now surfacing after 50+years are not sincere, particularily one. I don't know how to approach this. Uncle is paranoid and thinks everyone is after his land. I would like to talk to their atty. If I do is he obligated to tell them I was inquiring? "hey your nephew wants POA. Did you know that"?. I'm not after their money, just don't want the wrong person to run and have them declared incompetent and say "I'm a nephew I should be in charge". What is ones first step? email open if you do not want to make it public.
 
Hey Tom, as you seem well aware, NOT having the Trust in front of me nor researching your states laws, myself or any professional, let alone Billy Bob, can NOT know or advise you about it as we don't know what it says about what responsibilities, powers and duties you have or do not have, nor do we know if the trust is funded and if so what are its assets, and if the grantors retained any powers (or its all you) or if you're current or successor trustees or if its revocable or non revocable.

WHEW Attorneys love disclaimers lol However, that being said.

I always prepare SEPERATE Health POA's and Financial POA's. A POA has to be executed while the grantors are still competent, otherwise you need a much more expensive Guardianship, so that needs done ASAP. Then you can make them immediately active or make them springing, in which case they don't take effect until certain
triggers (like incapacity) take place. Also perhaps the trust already grants you certain powers whereby a POA is less necessary??

The healthcare POA would typically grant the person first right about healthcare decisions then if he or she in incapacitated the spouse then down to kids or you etc. Its the Hospital that push for them so they don't get sued when they operate. Its really not your worry but if you care about them and they trust you to make decision if they cant THEN YOU BEST GET ONE ASAP. Same for the financial POA to tie up loose ends the trust may not address.

POA;s arent that hard or expensive or rocket science HOWEVER an attorney needs to know what the trust says before a POA is prepared.

Generally a POA is a strict fiduciary and is prohibited from self dealing or absconding or taking advantage and likewise is a trustee.

If another nephew petitions the court to have them declared incompetent and be named guardian(which can be done) that's expensive but that don't mean the guardian becomes the owner of their property

ENOUGH, no sense in going on, you need to take the trust to an attorney and get advice, theres no way anyone here knows the answer and no sense in me rambling on about the law. Also just because some Billy Bob here was a trustee or POA and he did this or that, SUCH HAS ABSOLUTELY NO BEARING ON YOUR OR YOUR UNCLES CASE.

Sorry, this is way to broad and fact and trust sensitive to help you at all. If I could help I would.

John T Attorney at Law
 
Thank you. But if I go to their atty for just a general "what can I do or should I do next" type consult, is he obligated to tell them? I'm not trying to steal or anything, but uncle is to the point where he'd think I was "after all his money". I can go my own atty but he would be starting from scratch looking at their trust. I just don't know the next step.
 
THEIR Attorney, as you know, represents THEM and their best interest and is bound to confidentiality HOWEVER theres no harm in making inquiry and since youre already a trustee and are looking out for their best interests (NOT your own) I see no harm in asking. If the attorney does not feel comfy he will let you know not a problem, be up front and tell him your wishes and your concerns, cant hurt.

Again, a trustee or a guardian or a POA is a strict fiduciary and none of those grant them the power to take things for themselves, although that has happened grrrrrrrrrrrr

Actually if you are the Trustee YOU probably (depends on trust) HAVE A DUTY AND OBLIGATION to make inquiry,,,,,,SO GO SEE THEIR LAWYER IS MY ADVICE and don't do anything Billy Bobn or Bubba say was what they did as each situation is different. Trusts and POA and Guardianship is NOT something a lay person can help you with very much, nor even a profession UNTIL THEY REVIEW THE TRUST AND THE SITUATION AND THE LAWS OF YOUR STATE

I practice in this area and no two estate plans or wills or trusts or guardianships have ever been the same........Whats perfect for Billy Bob can be the opposite of whats best for Bubba

Best wishes n God Bless

John T
 
I went through it this summer with Aunt and Uncle. Aunt had dementia and was paranoid, but not declared incompetent.

Their lawyer HAD to get their approval for POA. She was good enough the day he met with them that they both agreed. You also need to remember that the lawyer may not discuss anything with you if they feel it is not in their clients interest. I do not think they even can disclose they represent them.
 
Sounds like a lot can happen, and where money or land is involved, my experience has been anything can and usually does happen. Many years ago my grandmother offered the small farm she was living on to whichever sister would see to it that she could live out her days on the place. All 3 wanted the deal, however each had their own set of specifics - with two of the 3 wanting to move her into their home. My parents were the only ones agreeing to let her live on the place in return for a will. They later regretted ever agreeing to this, as things went south quickly. Dad was farming the place, and had threats, equipment damaged, etc and litterally could not leave a tractor on the property for fear of damage (I believe both his tractors had sand added to the crankcases). My parents finally gave my grandmother an ultimatum that she either made the deeds over to my parents or they wanted out of the agreement. They got the deeds, however the other two siblings ended up filing a law suit saying that my grandmother was not of sound mind when she wrote the will nor made the deeds. It never went to court, but basically tied up the land for several years with the legal proceedings hanging over their heads. This was about 40 years ago, and I was small and do not recall all the details, but just to give an example of how bitter the battle was, one of my aunts passed on and my mother did not know her own sister had passed until she read it in the obituaries in the local paper. I know this is a different scenario, but just an example of how things can turn ugly where land or money is involved, regardless of how well thought out or good intentions initially. I just a neighboring family up my road part ways when the mother never made any sort of arrangements prior to her passing - thinking that everyone could agree (only takes one disagreement to turn things ugly). Good luck, and I hope it all works out for the best.
 
My mom ended up in the hospital this past June and the hospital got the Chaplin to assign dad as Power of Attorney. The hospital and it's staff could not do it but the Chaplin could.
 

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