Can a durable power of attorney create a living trust in order to avoid probate court?

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Can a durable power of attorney create a living trust in order to avoid probate court?

My siblings and I are his only heirs. My uncle’s farm, etc is willed to us. We want to avoid probate court if possible, and as his power of attorney, would I have the power to create a living trust for him? My uncle was recently placed on hospice and I am his caregiver. I have had to sign for him the past 2-3 weeks since as he has become incapacitated.

Asked on May 19, 2011 under Estate Planning, Nebraska

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Incapacitation is different than being incompetent and not of sound mind.  You need to check first with counsel who will only represent your uncle if he is of sound mind and can make a competent decision to transfer property and assets to a trust via a pour over will.  Then you need to determine if that is not possible if you are a full power of attorney or if your power of attorney is limited in some fashion.  You might be able to obtain leave of court to have counsel prepare an estate plan blessed by the court so that it is not voided because of a possible abuse of relationship/undue influence.


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