Legal Question in Wills and Trusts in California
Can giving power of attorney in personal affairs effect your trustee status?
My mother recently gave power of attorney in all her personal
affairs and business to my sister. My mother is also the trustee of
my fathers estate and living trust. By giving up her power of
attorney due to her competency,does this also mean that she must
give up her trusteeship of the estate and living trust ? Can we
remove her from being trustee if she has already claimed not to be
competent in her personal affairs? Can we also do this without
going to court since she has already claimed incompetence in her
personal affairs?
2 Answers from Attorneys
Re: Can giving power of attorney in personal affairs effect your trustee status?
If she gives up her position as trustee of her estate, then the successor trustee named in the trust would take over. If she is competent, she can name a new successor trustee if she wishes, but that document would need to be notarized.
If she is already incompetent, her giving the power of attorney may not be valid, either.
Re: Can giving power of attorney in personal affairs effect your trustee status?
Most of your questions depend upon the language of both the power of attorney and trust. The trust should say what happens when she has been found to be incompetent. The trust should also spell out what happens when she withdraws/resigns. The durable power of attorney must spell out what powers the "attorney in fact" has and when these powers take effect. For example, it may say that two doctors need to find your mother incompetent, and only spell out a few limited powers that the "attorney in fact" has.
The best advice is for you to see an estate planning attorney. If you desire to contact me, my telephone number is (408) 268-2580.
Sincerely,
Kai H. Wessels, Esq.
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