Power of Attorney what does this entail?

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My husband's grandmother recently let us know that she designated my husband as trustee when both she and her husband pass on. Tough situation to discuss, but since she is not getting younger she wants to ensure that all her assets are distributed as she desired when the unthinkable happens. She is such a wonderful woman that I hope she uses up all her assets first! The reason she chose my husband (rather than her only daughter - my husband's mother and her other grandchildren) is that she feels my husband (and me) will ensure everything is distributed as she wants. An incredible compliment in my opinion to entrust us in such a way. She feels that others will distribute as they deem fit themselves - and she is right. As I told my husband - she earned the money - she can leave it to homeless cats if that's what she wants.

Any way the dilemma - she doesn't want anyone else to know as she feels it will cause a great upset in the family. Now grandmom as on the ball as she is - now needs to take certain medicine that sometimes causes her to forget things. Nothing important - more like the names of things, etc. So my husband's mom discusses how she is going to have her evaluated to determine if it is Alzheimer's and wants to get a power of attorney over her assets. Can she do this? Grandpa is old, but is quite with it and grandmom is quite with it (expect for not remembering the names of things like air conditioning or a store) and still very mobile. And if so, what impact will this have on her Will and my husband as trustee? My husband is thinking of telling his grandmother of his mother's plan, as he doesn't want his grandmother wishes not met, but he doesn't want to case ill feelings among his family either.

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linkat : i suggest you persuade grandma to have a lawyer make up the necessary paperwork of designating your husband as trustee .
it is too easy to make a mistake in drawing up the proper documantation; it would also reduce the chance of someone later claiming that 'grandma didn't know what she was doing '. the cost is relatively small , but should give you peace of mind .
also make sure the will is drawn up properly !!!
hbg

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I don't think Power of Atty fits here (It's possible but much more limited). Normally you'd seek guardianship over an elderly family member that is unable to take of themselves.

Your husband's mother can certianly TRY to get appointed as her mother's guardian but unless there is more to it I'd have to guess that the courts would be reluctant to do so unless the grandmother's husband consents to it as well. Outside of significant extenuating circumstances the courts will almost always designate a competent spouse to manage the affairs of the other before allowing anyone else.

Two points come to mind here - first, even if your M-I-L were appointed guardian the will would still be in force as is - your M-I-L can't change her mother's will. She could however, liquidate any accounts and drain the estate of any value before her mother's death and in effect, by-pass the will if she isn't watched.

The second being that if she opens the can of worms your husband could challenge it in court and request that he be made the legal guardian (any other family member could do this as well...). If his grandmother made a decision to entrust him with her estate he could make a pretty strong case that he would be the one she would entrust to look after her while she was still alive as well.

If your M-I-L starts to push the issue you need to find an Estate Atty to talk to quickly.

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Thanks all. I pretty sure she has all the legality ironed out in regard to the will and setting my husband up as trustee - she is pretty sharp actually and knows what needs to be done in pretty much all aspects - just getting very old and getting a bit forgetful. I just love the woman as she is a hot ticket and is extremely independent. It would kill her to for some one to have power of attorney over her. The other difficulty is we live across country from them. His mom is close by.

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If she does go for a Power of Atty Linkat - I'd have you hubby fit it and request that she be appoint either guardian or conservator.

If she gets a Power of Atty she doesn't have to consult with anyone or report to anyone on what she does with the assets. She'd be free to do whatever she pleases.

If she's appointed guardian then she would have to file periodic reports to the court detailing what she's done with anything from the estate and she can be held accountable for mismanagement.

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What fishin said.

Grandmom would have to agree to give your M-I-L power of attorney. It is a power given by her. It can be very specific, over just certain issues, or very general. It could be revoked by Grandmom at any time, but would end when she passed away.

It sounds like what your M-I-L is talking about is a committeeship, granted by the court, over a person who is mentally incapable. That doesn't sound like Grandmom, from what you've described.

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Families are complicated.

Families with secrets are even worse.

By "trustee" I assume that your grandmother-in-law has appointed your husband as executor of her will and that this appointment is written down in legal fashion.

If this appointment causes trouble, better that the trouble come while your grandmother is alive and can reinforce her wishes. Post mortem ructions can split a family forever.

My husband holds Power of Attorney for a mentally ill family member. Essentially he is her legal, court-appointed guardian. He also holds Power of Attorney for me in the event that I become unable to deal with matters myself.

I'm not a lawyer, but it seems to me that your m-i-l would not be able to get a Power of Attorney if her mother objected.

Here again, secrets will cause trouble. If your husband's mother is mentally competent, she should choose who holds Power of Attorney for her (in the event that she is unable to act for herself). There are legal forms for this. Everyone, starting with your grandmother-in-law should know what is going on.

As long as she's mentally sound, your m-i-l has no business threatening to take over. I'm very suspicious of people who virtuously act in other peoples' interests, whether or not the other people want help.

Avoid secrets.

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My husband is going to speak with his grandmother to let her know and suggest almost what you are saying - that she may want to consider making him power of attorney if she is unable in any way. The only reason that his being Trustee of the will is a secret is that is grandmom's wish - because families are complicated and frankly doesn't trust that her daughter would use her assets as grandmom would state.

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Linkat--

A word of caution from practical experience. The woman for whom my husband holds Power of Attorney (It is a document that you "hold" not a title that you assume) lives 40 miles away.

There have been times when the weather is bad or his health is poor that those 40 miles are long, long miles.

A transcontinental guardianship would have difficult moments.

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That is my concern. Her daughter would be best - she also has a sister that is a bit younger than her, but has her own medical issues. It is not that her daughter (my MIL) would do anything terribly wrong or does not care about her mother, it is just that she has significantly different opinions on where money should be spent and would most likely carry out her wishes over her mothers. Not that she would pocket all her mom's money herself, but probably give a large amount to the church (not that there is anything wrong with that), but grandmom, knowing her would want to split the money and assets among family members most likely.

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Having been skunked long ago on something like this, not the exact equivalent, I'd listen to people like Fishin. I'd consult an estate attorney yourselves - not so much to shovel money in your own direction, which you are clearly not advocating, but for wise advice. An hour's talk could be useful.

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Thanks - my husband ended up, not talking to an attorney, but some one who has gone through all this himself with an attorney - sort of a father figure to my husband.

It seems that he is set up legally as Trustee - no Will - as grandmother does not want anyone to know what the distribution of assets are and in a Will everyone would have access to read it and more of her assets will be paid to the lawyer. She has written up instructions that are only available for the Trustee to view and as Trustee you do not have to follow these instructions that is why she entrusted my husband - so she would have some one that would follow her instructions.

My husband did tell grandmother about the power of attornery thing and she is not angry, but is glad she will be prepared as she has her doctor's appointment today and that is where this is planned to be discussed - I believe it is by suggestion of the doctor in case she becomes disabled in some way - I suggested maybe they want power of attornery for my husband and a health care proxy for mom. So we will hear later today how all went.

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...TRUSTEE / EXECUTOR...

linkat : i fished out the above article ; there are many more to be found .
one thing to keep in mind is that the 'trustee' assumes a 'fiduciary stewardship' (i think that's what it is called) ; to put it more simply , i understand that the trustee must make sure the right financial decisions are being made and that a trustee could be held personally responsible for any errors made .
as already suggested by others , BEFORE accepting the position of trustee you would be well advised to seek the counsel of a trusted lawyer .
in our city the 'seniors' association' has a lawyer who will give basic advice free of charge . you might want to check and see what's available in your community .
hbg

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There may be some negatives putting all assets in a trust, rather than bequeathing them by will. With the latter, the heirs get the property with a stepped-up basis, meaning that their cost basis in the property is the fair market value at the date of death. Thus, if they quickly sold, there would be no tax on the sale.

In most cases, a person should have a will, a living will (providing directions on life-sustaining procedures, etc.), and a power-of-attorney covering financial and other matters should the grantor become incompetent.

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Power of Attorney what does this entail?

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