Power of Attorney for my brother who is Executor over our family trust

My brother recently had a mini-stroke and is unable to take care of himself. He gave me Power of Attorney over him and I just found out he Breached his fiduciary duties over our Family Trust. Do I now have legal right as Executor with the Power of Attorney?

Asked on March 8, 2017 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, a trustee of a trust (that is the correct term; an "executor" who someone who is appointed by a will to oversee the estate of the testator, or person who made the will, when he or she dies) may NOT convey power over the trust by a power of attorney (POA)--he can give power over his or her own business, assets, funds, property, etc., but not over those in a trust, which is essentially a separate legal person for this purpose. If there was a back-up trustee listed in the trust instrument (document[s] creating the trust), he or she will take over if the trustee is now incapacitated or incompetent. (Though note: this may require  a legal determination or declaration of incompetence, which would require going to court.) If there is no specific back-up trustee appointed, if the trust instrument provides a mechanism or way to select a new trustee, follow what the trust documents say. If there is no guidance from the trust itself, you will likely have to ask the court to appoint a new trustee, which will require a legal action brought by someone with "standing," which means an interest in the trust--i.e. one of the beneficiaries. In that legal action, if your brother did violate his duties, that can be addressed to--possibly with court order requiring him to repay any amounts improperly taken out, or undoing improper transactions.
There are, as you can see, a number of potential legal issues here--having your brother declared incompetent (and a guardian appointed for him) if necessary; determining if there is another trustee appointed by the trust, or else petitioning the court to appoint on; dealing with any breach of fiduciary duty. You are strongly advised to retain an attorney (e.g. a lawyer who handles trusts and estates work) to help you.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

No, a trustee of a trust (that is the correct term; an "executor" who someone who is appointed by a will to oversee the estate of the testator, or person who made the will, when he or she dies) may NOT convey power over the trust by a power of attorney (POA)--he can give power over his or her own business, assets, funds, property, etc., but not over those in a trust, which is essentially a separate legal person for this purpose. If there was a back-up trustee listed in the trust instrument (document[s] creating the trust), he or she will take over if the trustee is now incapacitated or incompetent. (Though note: this may require  a legal determination or declaration of incompetence, which would require going to court.) If there is no specific back-up trustee appointed, if the trust instrument provides a mechanism or way to select a new trustee, follow what the trust documents say. If there is no guidance from the trust itself, you will likely have to ask the court to appoint a new trustee, which will require a legal action brought by someone with "standing," which means an interest in the trust--i.e. one of the beneficiaries. In that legal action, if your brother did violate his duties, that can be addressed to--possibly with court order requiring him to repay any amounts improperly taken out, or undoing improper transactions.
There are, as you can see, a number of potential legal issues here--having your brother declared incompetent (and a guardian appointed for him) if necessary; determining if there is another trustee appointed by the trust, or else petitioning the court to appoint on; dealing with any breach of fiduciary duty. You are strongly advised to retain an attorney (e.g. a lawyer who handles trusts and estates work) to help you.


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