I'm the sole surviving settler of what's now my revocable living trust and I wish to add my existing Power of Attorney son (with standard legalize powers) to my bank's checking account (which is in the trust). Unfortunately, my Calif bank, despite their fiduciary responsibility, claims my PoA son (who is also my successor trustee when I die), can't be added as I wish, and that I must first appoint him as a Co-Trustee before he can be added. Not that I can't amend my trust to appoint him as a Co-Trustee (although not without considerable effort as well as added expense to me), it's just that their stance in principle, not only makes absolutely zero sense to me, legally or otherwise, as well as would also seem to be a clear violation of their fiduciary responsibility to me. Am I wrong, and if so, please explain, and if not, what's my recourse if any short of filing suit?
2 Answers from Attorneys
Your bank is right. Here's why. The bank owes its fiduciary duty to the trust, not you. When you create a trust, even a revocable trust, the trust assets are no longer yours, even if you are the beneficiary. A new legal "person," the trust, owns the assets. The bank owes a fiduciary duty to the trust not to allow anyone who is not a trustee access to the trust's assets. A trustee, likewise, owes a fiduciary duty to the trust not to give access to the trust's assets to someone who is not a trustee.
I know this makes little real world sense in your situation since all you want to do is give your son access to your own money, but the law is not set up for your situation per se. What if you were trustee of a trust created by someone else and/or with other beneficiaries? They wouldn't want you to be free to just give your son access to their trust assets by giving him a power of attorney. Or if you set up a trust with a professional manager as trustee, you certainly wouldn't want them to be able to give anyone they choose access to the assets just by signing a power of attorney. So that is why the law is set up so that a trustee cannot give access to trust bank accounts to anyone who is not a current trustee and a trustee cannot assign or delegate trust duties by power of attorney.