Tag Archives: TRUST

Can an elder with mild dementia revoke her Power of Attorney?

Q: My mother signed a durable POA and a health directive just six weeks before two Drs declared her incompetent in 2016. Her agents are also her trustees. Isn’t her trust now irrevocable? These two, my siblings stuck her in a home against her wishes prematurely and are now abusing their responsibility, claiming they can as POA make trust changes and do not have to give an accounting either. Mom also signed on the directive that the agents can’t be questioned by anyone. This is horrible. Her symptoms are mild. They are acting directly against her wishes. Her trusted attorney I used to talk to has passed. I am prohibited from acting as trustee, but I have two petitions filed in pro per. I think the facility she is in is not properly licensed for her health needs. Can I file ex parte for a guardianship just related to her health and placement? I can’t afford an attorney. They have trust funds for theirs. (Oil City, PA)

A: How was she declared incompetent in 2016 and now just has mild dementia? Normally it is reversed. However, mild dementia normally does not render someone incompetent to make decisions that affect their life and to sign important documents. I would consult with her physician as to whether she is now competent. If she is competent, she can act on her own, and revoke the POA in writing. Once done, she can fire the two Agents on the POA, your siblings. As to whether the POA allowed your siblings to make changes to a trust, that is dictated by the language of the POA. Under the new POA statute, effective 1/1/2015, that power must be specifically granted in the POA document-the power to alter trusts. Even if the POA was written prior to the new statute and therefore grandfathered in, the POA should have some language authorizing such power. There are many issues here and I strongly suggest you seek an attorney to consult with. If the attorney advises that your actions may have merit in court, the attorney may be able to be paid from your mother’s funds.

Can my mother and I sell her home and dissolve the life estate?

My mother is 89 years old and developed mild dementia and heart disease. The doctor does not want her to live by herself, so she has moved in with me. We set the life estate up about 5 years ago after a lawyer assured us it was the right thing to do. I am the only surviving child and do not plan to put mom in a nursing home and will use hospice if needed in the future. I do not want to rent the property because it is about 100 miles from me and would be more trouble than it is worth. Can I sell the property since I am providing my mother with a place to live and am also her caregiver? (Baldwin Borough, PA)

A: I would need to know is the life estate in the deed or a trust and look at the documents. If in a deed, does the life estate terminate upon conditions of her death or her being unable to live in the home independently? If in a trust, the trust will have similar conditions which constitute the ending of the life estate. Who does ownership pass to when the life estate conditions have been fulfilled? If one of the conditions of the life estate terminating is her being unable to live in the home independently, then that condition has been fulfilled and you should be okay. However, you should review the paperwork with attorney for a more definitive answer.

Can my mother and I sell her home and dissolve the life estate?

Q: My mother is 89 years old and developed mild dementia and heart disease. The doctor does not want her to live by herself, so she has moved in with me. We set the life estate up about 5 years ago after a lawyer assured us it was the right thing to do. I am the only surviving child and do not plan to put mom in a nursing home and will use hospice if needed in the future. I do not want to rent the property because it is about 100 miles from me and would be more trouble than it is worth. Can I sell the property since I am providing my mother with a place to live and am also her caregiver? (Baldwin Borough, PA)

A: I would need to know is the life estate in the deed or a trust and look at the documents. If in a deed, does the life estate terminate upon conditions of her death or her being unable to live in the home independently? If in a trust, the trust will have similar conditions which constitute the ending of the life estate. Who does ownership pass to when the life estate conditions have been fulfilled? If one of the conditions of the life estate terminating is her being unable to live in the home independently, then that condition has been fulfilled and you should be okay. However, you should review the paperwork with attorney for a more definitive answer.

Can my brother who is POA do a living trust for mom?

Q: My brother has POA over my mom’s assets. Can he change her will and estate into a living trust without her signature or notary? He says he can. (Pittsburgh, PA)

A: Generally, the Power of Attorney documents must specifically empower the agent to create trusts, or for your brother to do so. You should have the trust instrument reviewed by an attorney. An Agent on a Power of Attorney cannot execute a will for a Principal, nor change it.

Can trustee allow her adult children to live in father’s house rent free?

Q: My father’s second wife passed away in March 2016, at which time my sister immediately had her children, ages 20 and 22 move into one of his houses under the stipulation they were to check on my father every day and pay the cable bill. They have done neither. My father pays their bills unknowingly, and my sister, as trustee, won’t give my father a copy of his will and trust so he can see what he signed. With the exception of my brother and I, the rest of the family constantly lie to my father about issues concerning his health, driving, and legal issues. Due to his early stage dementia, this causes more confusion for him. My sister (trustee) has stated a couple of times that she wished our dad would die. Doesn’t that constitute elder abuse? (Glenshaw, PA)

A: With early stages of dementia, your father can still be competent. If so, it is up to him to allow the grandchildren to live in his house and allow your sister to be an influence. If he made her trustee of his trust (if that is what you mean) he must trust her to some extent. However, as Trustee of his trust, she has an obligation and duty imposed to preserve trust property. Allowing her children to live in your father’s house for free does not sound she is acting in a fiduciary capacity. If you feel he is being taken advantage of, have a talk with him. He can always make you and/or your brother Agent under a POA if he is still competent. If he should digress to the point of being incompetent, you and/or your brother can file to be his guardian in court. If the sister also wants to be his Guardian, you may have a contested guardian hearing. In addition, if you believe she is mismanaging the trust, your lawyer can file for an accounting of that trust with the court. You will need the advice of a lawyer to handle these procedures.

Can I create a living trust or will with my mother’s POA?

Q: My wife and I have been resident caregivers for the last six years of my aging Mother of 90 years of age. She assigned me as her Durable POA approximately seven years back. She is now mentally incapable of making decisions and is approaching hospice care. I would like to designate who and where her final assets (Home and less than $150T cash) would go upon her death. There are siblings involved. She has stated to us in the past how she wanted her remaining assets to be divided. Is her POA within my scope of authority? (Mt. Lebanon, PA)

A: I suggest a consultation with a lawyer. Generally, a Power of Attorney does not allow an Agent to create a trust or a will for the Principal. However, if the Power of Attorney you reference contains the appropriate powers, you may be able to set up trust or similar accounts which will achieve the result you are looking for. I would take the POA to an estate and trust lawyer for review.

How do I transfer assets to an elder parent if I die first?

Q: I am an adult only-child (age 42), and my retired mother (age 68) has no blood relatives other than me. If I were to pass before her, I want her to be protected financially. I currently have her as the sole beneficiary to one of my life insurance policies and one of my investment accounts. My husband is the beneficiary of all other insurance policies and financial assets. For estate planning purposes, what is a good vehicle to consider, for securing that the assets that are designated for my mother provide not only a secure income but also cover basic needs that may arise (ex: home, medical care, long term care, transportation)? (Cranberry Township, PA)

A: A complicated question which cannot be answered without much more information including your mother’s health, the value and structure of her assets, her income, your health, your husband’s health and the value and structure of your assets, etc. It would generally be inadvisable to leave these assets directly to her via the testate process or non-probate succession given her age, especially if she has health issues. The consequences could result in ineligibility for Medicaid and VA benefits, if applicable. A revocable living trust with beneficiary designations aligned with the planning is generally advisable. Again, seek a consultation with an attorney.

During probate, can I get my belongings from decedent’s home?

Q: My aunt died without a will and left a property behind in Pennsylvania. She has only one living daughter in Florida. She hired a probate attorney who set up a trust to deal with the process because she is too busy to deal with it herself. There are many things in the house that are mine that my aunt had let me keep there for storage. I try to enter the home to retrieve them, but the trustee tells me I am not allowed on the premise. Is there a way I can be allowed inside? I am afraid that my valuable belongings will be inventoried along with my aunt’s things. (Pittsburgh, PA)

A: A Trustee or Executor, has legal authority over real and personal property of a deceased person. They have a duty to preserve it and keep it in tact until it can be inventoried and accounted for and properly disbursed pursuant to the trust agreement or will. If you cannot work this out with the Trustee or Executor, you will have to hire a lawyer to file a petition in the Orphan’s Court in the county which has jurisdiction. This is likely to be where your aunt resided and died. If this property is indisputably yours, you should have no problem. If there is a question and you have no clear proof such as receipts or records, it may be difficult.

Am I entitled to my Deceased fathers estate step mother dies?

Q: My natural father divorced my mother when I was 10 years old. I have 2 siblings. He remarried a woman with two children and didn’t father any of his own with her. He gained custody of me but due to the physical abuse by my father and stepmother, I became a ward of the state until I was 16. My father had a sizable estate when he passed away, which I believe could be millions of dollars. This stepmother controls all assets and when my father was alive prevented any type of relationship or financial assistance to any of his children. When she passes away are we entitled to sue the estate? She lives in Florida now. (Finleyville, PA)

A: I assume your father did not leave anything to you when he passed? If so I am not sure why his wife would. However, you never know. There is no law that says you are entitled to any inheritance from either your father or your step mother. Both have the free will to exclude you from their estate or inheriting in any way from them. There is too little information here to provide an answer. When you learn she passes, you may want to talk with the attorney of her estate or trust to determine if by chance there you are an heir. If you are an heir of her estate, or their trust, you will be contacted. However, it wouldn’t hurt to be proactive and call the attorney handling her estate.

Is healthcare POA enough to move my mother in with me?

Q: There is a greedy trustee in charge of my mother’s finances who wants to sell all my mother’s properties. The trust states that I can live rent free at one specific property for as long as I wish as my mother wants me to retire in this home. My father built it and I grew up in it. My mother also wants to move in with me since she has dementia and can’t take care of herself. Also, the in-home care she has at her late husband’s house is costing a fortune and will deplete all her assets. The trustee fights me on getting rid of the expensive in-home care. Don’t I have a right to look out for my mother’s best interests and wishes as her daughter and POA of healthcare? The trustee acts like a dictator and expects us to do but why can’t we do what we know is the best thing for us as a family in spite of the trustee using intimidation to get her own way? (Pittsburgh, PA)

A: You need someone with an unbiased and objective point of view to look at the entire situation. I would make an appointment with an estate attorney experienced with trusts and guardianship law in to have the POA and the trust agreement reviewed. In addition, the attorney needs to be apprised of all the facts. If what you say is correct, it may be possible under the language of the trust agreement for your mother to fire the Trustee and have another one appointed. If your mother is not competent, this can be done by an Agent under a POA if the language of the POA permits an Agent to do so. However, as you describe this as a medical POA, it is doubtful that it contains such language. In that is the case, you may need to be appointed as her Guardian. Again, you need a legal consultation.