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Tool Talk Discussion Forum

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

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John T

12-16-2013 14:51:02

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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

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12-16-2013 15:54:24

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 Re: OT:John T, Estate, guardianship, POA? kinda long in reply to John T, 12-16-2013 14:51:02  
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.

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John T

12-16-2013 17:58:44

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 Re: OT:John T, Estate, guardianship, POA? kinda long in reply to redtom, 12-16-2013 15:54:24  
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

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