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Does a power of attorney give me the ability to act for my father as trustee of his revocable living trust?
Anonymous5 views5 answers
I have a durable POA for my father, who is in failing health. He has asked me to handle an increasing amount of his affairs. A lot of his assets are in a revocable living trust with him as trustee. I am named in the trust as the next trustee if he becomes unwilling or unable to be the trustee. I don't want to remove him as trustee over his own assets right now, but he and I both know that I might need to tap some of the trust assets to pay for his care. The POA is extremely powerful, predates the trust, and says I have POA for everything "including but not limited to" a list of possible transactions that goes on for pages, but does not specifically say I can act as trustee for him. My question is this: can I use the POA to act for him as trustee?
Maureen P. Groden GluntzEstate Planning AttorneyPittsburgh, PA ·
A thorough review of your father's Power of Attorney and revocable trust by a qualified attorney is necessary to determine when and under what circumstances you can act on behalf of your father. More importantly, however, the laws governing Pennsylvania powers of attorney were recently significantly changed. In fact, one of the new powers that a person can now give to his/her agent is the power to exercise fiduciary powers that the person has the authority to delegate. This would allow your father to give you the power to handle purely administrative matters with regard to the trust without him relinquishing control. However, since this is a new power which must be specifically stated in the document, your father must execute a new power of attorney which conforms to the new law. Therefore, your father should meet with an attorney experienced in estate planning matters as soon as possible to discuss the new law and his options with regard to the trust.
Generally you would look to the Trust itself for the authority to deal with assets held in trust and when the successor trustee takes over control of the trust. I recommend anyone in your situation sit down with an attorney and discuss the scope of your authority and what your responsibilities and obligations are in these circumstances. You do not mention exactly what the family situation is, and even if you did, it is likely it would be too complicated to respond appropriately in this type of forum.
Hi there, I agree that one would need to look to the terms of the Trust, together with the particular facts of your situation and the relevant law. Use 's Find a Lawyer tool or contact your local bar association for a referral. Good luck.
Why do you think it is appropriate to be his POA but not successor trustee? You have to use the tools in front of you and my guess is that the document allows him to assert his role as trustee of the trust if he regains capacity or wishes to. Sit down with an attorney to discuss the situation but this is exactly what the documents are designed for so why not use them?
A Power of Attorney does not give you authority to act for your father in any fiduciary (trustee, executor, agent, etc.) capacity. If it follows the statute, it generally gives you the power to renounce his right to serve or to have him resign a fiduciary position, but you do not have the power to act as a fiduciary on his behalf. Only a successor Trustee has that power.
