Legal Question in Wills and Trusts in California

Thank you Mr. Tim McCormick and all attorneys who have been helping me figure out my nightmare.

When my father was alive he gave me as much power as anyone could give to someone in the durable power of attorney. Being his alter ego I had identical legal rights as the person conferring the power. Also, "any instrument entered into any manner by my attorney in fact shall bind everyone". Power to revoke, amend trusts anything my father could do I could do and I removed my two sisters as co-trustees in my father's trust before he died. I drafted up a document dated and had three signatures on it. Everything was done correctly. In doing that does that mean they no longer have anything to do with my father's trust? Isn't that the law?


Asked on 8/10/15, 11:03 pm

2 Answers from Attorneys

Len Tillem Tillem McNichol & Brown

Well, that depends. First Under Probate Code �4264(a) an agent under a DPOA can't amend a trust unless both the DPOA and the trust document allow an agent to amend the trust.

Second, if the amendment not only removed your sisters as co-trustees but also removed them as beneficiaries of the trust, then forget it.That's an obvious self-serving transaction and a likely breach of fiduciary duty.

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Answered on 8/11/15, 12:13 pm

I have to agree with Mr. Tillem. If your claims are based on any alteration of your father's trust instruments, or creation of any trust for your benefit or transfer of any property into a trust for your benefit or the grant of any interest in real property to you without payment of its value by you, it would exceed your powers under a power of attorney and could actually subject you to civil and even criminal charges. You are mistaken in your belief that a power of attorney grants complete power to do anything and everything the grantor of the power could do. There are limits, both statutory and based on your fiduciary duties as the attorney in fact, and attempting to exceed those limits for your own benefit is not allowed and may even in some circumstances constitute criminal elder financial abuse.

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Answered on 8/11/15, 4:52 pm


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