Trustee vs POA

[hoops777]

I have had a couple threads recently about taking care of my brother.
My question is if I become trustee of his living trust and his home is in his trust,how does this play out.
A friend/caregiver of his assumes POA.
I can sell his house if in my brother’s best interest even if the friend with POA does not wish too?
If the house is sold do the proceeds stay in the trust where I would have control of how his money is spent over the friend with POA?
If I am correct it would solve a huge issue we are having.I do not want to have POA and I do not think it wise to give his friend/caregiver POA unless I can remove the main financial decisions from her.It is of course complicated.
Thanks

[FIREchief]

I believe you mean that you are "trustee" of the living trust. An executor is not appointed until somebody passes away.

While a trustee does have powers as established by a trust, it may depend upon language within the POA document how much "power" the POA may have over assets that the grantor placed into the revocable trust. Certainly, once a trust becomes irrevocable, the POA likely has no influence.

[Gill]

If you are trustee of the trust and the house is an asset of the trust, you would have whatever authority the trust instrument gives you over that asset and the proceeds of sale. This would normally include the power of sale. The person with POA would normally have no authority over trust assets.
Gill

[hoops777]

Ok.But If I sold the house would the proceeds go into the trust so I would have control over his living expenses instead of the POA?That would be all the money he has left.

[hoops777]

I believe you mean that you are "trustee" of the living trust. An executor is not appointed until somebody passes away.

While a trustee does have powers as established by a trust, it may depend upon language within the POA document how much "power" the POA may have over assets that the grantor placed into the revocable trust. Certainly, once a trust becomes irrevocable, the POA likely has no influence.

Sorry,I was reading his trust and my other brother who just passed was listed as executor.This is all new to me.

[Gill]

Ok.But If I sold the house would the proceeds go into the trust so I would have control over his living expenses instead of the POA?That would be all the money he has left.

Yes, if the house is an asset of the trust and it is sold, the proceeds would continue to be a trust asset.
Gill

[hoops777]

I am now thinking that I could be sued as a trustee just as easily as a POA by a caregiver who is injured helping my brother.....

[Earl Lemongrab]

I am now thinking that I could be sued as a trustee just as easily as a POA by a caregiver who is injured helping my brother.....

Well, it's easy to sue anyone you want. However, neither a POA or trustee is likely to be held personally liable for anything in those circumstances. Assets in a revocable trust would be assets of the grantor and if he were sued then those would be something the court might attach to satisfy a judgment. But it also depends on the state and its homestead exemptions. You should only be hiring caregivers that are separately insured and bonded.

[David Jay]

Executor and POA are mutually exclusive. You can only have POA for someone who is living and you can only be executor for someone who is dead.

[hoops777]

They are the crew that I would be inheriting and that my brother knows and wants.None of them are licensed or bonded and that is my issue if I am seen as responsible for continuing their employment.

[hoops777]

Executor and POA are mutually exclusive. You can only have POA for someone who is living and you can only be executor for someone who is dead.

I know I misspoke.I should have said trustee.

[Katietsu]

I am now thinking that I could be sued as a trustee just as easily as a POA by a caregiver who is injured helping my brother.....

Anyone involved in anyway can be sued even if you are not a POA or a trustee. But as said previously, this would be unusual in your situation you describe. That said, a POA agreement can be as limited as you want it to be. In other words, someone can have a POA that only includes one bank account and nothing else. At the extreme, people sign POA’s all the time to allow a professional complete a single real estate clising for them and nothing else. And think about the situation where some bank was the trustee of the trust for a minor child and they doled out the money for the kid’s college expenses including a car. Would expect the bank to get sued if the kid hit somebody? In other words, I do not think the titles of trustee and POA are specific enough to determine across the board liability.

[hoops777]

I am now thinking that I could be sued as a trustee just as easily as a POA by a caregiver who is injured helping my brother.....

Anyone involved in anyway can be sued even if you are not a POA or a trustee. But as said previously, this would be unusual in your situation you describe. That said, a POA agreement can be as limited as you want it to be. In other words, someone can have a POA that only includes one bank account and nothing else. At the extreme, people sign POA’s all the time to allow a professional complete a single real estate clising for them and nothing else. And think about the situation where some bank was the trustee of the trust for a minor child and they doled out the money for the kid’s college expenses including a car. Would expect the bank to get sued if the kid hit somebody? In other words, I do not think the titles of trustee and POA are specific enough to determine across the board liability.

I would be responsible for my brothers care and allowing unlicensed caregivers to care for him.I guess I am being paranoid about one of them injuring themselves and coming after me if my brother is at the end of his money or the state of Calif coming after me for not having work comp or something.My wife wants no part of this in it’s current state.
This was talked about on a previous thread but my question here was about it being better for me to be the POA or trustee.

[WannabeAgAlum]

On the question of whether an agent under a durable power of attorney would be more, less or as liable as a trustee of a trust depends on what the documents say and on state law, but I would guess being trustee is more risky than being an agent under POA. One reason may be that an agent has less duties if he/she decides not to act at all (or doesn't even know that he/she was appointed agent, which admittedly isn't helpful in OP's case). Trustee probably doesn't have that same kind of relief if he/she doesn't act. Again, this depends heavily on the document language and state law.

This next part isn't helpful to the OP, but my question is why would someone name one person as successor trustee of their revocable trust and another as agent under a general DPOA. It doesn't make sense to me unless the person wants specific assets managed by one person over another, and those assets are either left in the person's name or transferred to the revocable trust so the right person can manage. Most folks I run into want the same person to be in charge of all their financial affairs should they become incapacitated. I'd be interested to hear other reasons as I see this more often than I think I should.

Wannabe

[snackdog]

You should contact a local attorney with experience in these matters in your jurisdiction.

[dbr]

Being responsible for another person's care can be onerous and nerve wracking. We have discussed this on the other thread. If this issue is causing you serious stress and anxiety you should not be hiring this kind of care and should be seeking an institution for your brother. This may be better in the long run anyway. Of course, this is just a point of view, and you should make the right choice for all concerned. I say this having been twice involved in this sort of thing using both personal care and institutions. I also agree getting your own legal counsel seems to be indicated.

[hoops777]

Thank you for your replies.I guess I was hoping for some magical answer that does not exist in reality.I posted this on a whim without doing enough research first.It is obvious now that being trustee is probably worse than having POA and now it appears I am destined to assume both.
I know what I need to do.I have spoken on the phone to a couple lawyers and they both made it sound like I had nothing to worry about until I really pressed them at the end of the conversation,then I did have something to be concerned about.
I appreciate all the helpful comments on this and the previous thread.

[cheapsally]

Hoops 777, I have read your various posts about caring for your brother. As one who has likewise had responsibility for my own completely disabled, brain-injured brother for the last four years, I want to pitch in some moral support. The bureaucracies and personal dynamics you are navigating are incomprehensible to those who have not lived through such situations. (I spent 6 full hours on the phone with an insurer last week.) Get counsel from knowledgeable people, including a good elder-law attorney. The cost is worth it. Make the decisions you have to make, prioritizing kindness, dignity, and fiscal responsibility. Then forge ahead without second-guessing yourself. There is no single correct solution to this or any of the myriad other problems you will face.

This is one of the hardest things you will ever undertake. But it has to be done. There will be times when your burdens reduce you to tears, anger, and despair, yet you will also learn from the experience. It's about humility, love, and doing the best you can. Hang in there.

Cheap Sally

[hoops777]

Hoops 777, I have read your various posts about caring for your brother. As one who has likewise had responsibility for my own completely disabled, brain-injured brother for the last four years, I want to pitch in some moral support. The bureaucracies and personal dynamics you are navigating are incomprehensible to those who have not lived through such situations. (I spent 6 full hours on the phone with an insurer last week.) Get counsel from knowledgeable people, including a good elder-law attorney. The cost is worth it. Make the decisions you have to make, prioritizing kindness, dignity, and fiscal responsibility. Then forge ahead without second-guessing yourself. There is no single correct solution to this or any of the myriad other problems you will face.

This is one of the hardest things you will ever undertake. But it has to be done. There will be times when your burdens reduce you to tears, anger, and despair, yet you will also learn from the experience. It's about humility, love, and doing the best you can. Hang in there.

Cheap Sally

Thank you.

[dbr]

Hoops 777, I have read your various posts about caring for your brother. As one who has likewise had responsibility for my own completely disabled, brain-injured brother for the last four years, I want to pitch in some moral support. The bureaucracies and personal dynamics you are navigating are incomprehensible to those who have not lived through such situations. (I spent 6 full hours on the phone with an insurer last week.) Get counsel from knowledgeable people, including a good elder-law attorney. The cost is worth it. Make the decisions you have to make, prioritizing kindness, dignity, and fiscal responsibility. Then forge ahead without second-guessing yourself. There is no single correct solution to this or any of the myriad other problems you will face.

This is one of the hardest things you will ever undertake. But it has to be done. There will be times when your burdens reduce you to tears, anger, and despair, yet you will also learn from the experience. It's about humility, love, and doing the best you can. Hang in there.

Cheap Sally

Nicely put. I can identify with what you say.

[gotlucky]

Just my 2 cents:

In my experience, POAs are pretty worthless. I don't think you can walk into a bank and show them an "iron-clad" POA and withdraw funds; there is simply too much liability for the bank to trust a POA because its authenticity is difficult to prove. A trustee or successor trustee, however, is determined when an account is opened with the trust document. So as far as the bank is concerned, their relationship is with that of the trustee.

[dbr]

Just my 2 cents:

In my experience, POAs are pretty worthless. I don't think you can walk into a bank and show them an "iron-clad" POA and withdraw funds; there is simply too much liability for the bank to trust a POA because its authenticity is difficult to prove. A trustee or successor trustee, however, is determined when an account is opened with the trust document. So as far as the bank is concerned, their relationship is with that of the trustee.

It works better if one had walked into the bank earlier grantor and attorney together and drafted a POA at the bank applicable to transactions there. Your point is well taken that actually exercising POAs apparently can be dicey. Having everyone involved together at the same time at the institution is the procedure I have been involved in when I have had POA. SS and IRS are a different process in addition.

[gotlucky]

Just my 2 cents:

In my experience, POAs are pretty worthless. I don't think you can walk into a bank and show them an "iron-clad" POA and withdraw funds; there is simply too much liability for the bank to trust a POA because its authenticity is difficult to prove. A trustee or successor trustee, however, is determined when an account is opened with the trust document. So as far as the bank is concerned, their relationship is with that of the trustee.

It works better if one had walked into the bank earlier grantor and attorney together and drafted a POA at the bank applicable to transactions there. Your point is well taken that actually exercising POAs apparently can be dicey. Having everyone involved together at the same time at the institution is the procedure I have been involved in when I have had POA. SS and IRS are a different process in addition.

You are correct and thanks for your point. I was going to add that the only times a POA has been effective for me is when the 3rd party requested before it was needed, ie. a partner is out-of-town and inaccessible but needs to sign some documents at the closing.

[PatrickA5]

Can anybody think of a reason why DW and I would want a trust instead of POA when all of our accounts are jointly owned anyway? I'm talking about when I'm incapacitated - not the benefits of a trust for inheritance purposes.

[ResearchMed]

Can anybody think of a reason why DW and I would want a trust instead of POA when all of our accounts are jointly owned anyway? I'm talking about when I'm incapacitated - not the benefits of a trust for inheritance purposes.

Someone here (BH) seemed to suggest previously that Trust Docs would be easier to get recognized, vs. PoA's.

We are wondering the same thing... it's just the two of us, and things are owned jointly, *except* the retirement accounts (IRA, 403b, 401k), which must be individual.

We are also going to be making appointments with Hyatt Legal, the new Employee benefit this year, specifically about Trusts, PoAs, and also the other regular docs such as Medical Proxies, end of life directives, etc.
Some of this may well be state-specific.

RM

[afan]

Can anybody think of a reason why DW and I would want a trust instead of POA when all of our accounts are jointly owned anyway? I'm talking about when I'm incapacitated - not the benefits of a trust for inheritance purposes.

If everything except retirement accounts are joint and you each have the other with POA for the retirement plans, then you are fine for when the FIRST one of you becomes incapacitated. But what happens when the second can no longer manage your affairs? What happens if both of you get taken out at the same time-say an auto accident? Then you are back to needing someone to manage for you. You would still want to make that as straightforward as possible. That means by all means having durable powers of attorney, but also putting your assets in trust. Then have a backup trustee, likely the same person as the attorney in fact.

[gotlucky]

Can anybody think of a reason why DW and I would want a trust instead of POA when all of our accounts are jointly owned anyway? I'm talking about when I'm incapacitated - not the benefits of a trust for inheritance purposes.

If it's a joint account, then you don't even need POA. Either owner of a joint account can act as an individual owner. They can withdraw funds, close or make changes to the account without the consent of the other.

If you are going to rely on POA when you and the other owner are incapacitated, all I can say is, "good luck." Most banks won't recognize a POA. At that point, you will likely need to have the court appoint a conservatorship to access your money.

If you have a trust set up, it would be much easier to have a physician certify that you are incapacitated and a lawyer then provide a certificate of trust to prove you have the authority to act as successor trustee.

[MrsBDG]

You make it sound like you might be trustee and one of the caregivers POA, be aware, there can be POAs to allow one to act as Trustee, so make sure you understand each document that is created and signed.