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RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 38358
Experience:  Texas lawyer for 30 years in Estate law
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My mother is currently in the assisted living facility in

Customer Question

Hello,
My mother is currently in the assisted living facility in Tarzana, CA where I placed her (for her safety and health) approximately 4 years ago.
My mother established a springing power of attorney. I have the medical power and my older brother (who lives in Florida) and younger sister whom lives in the Valley, have co-shared financial power of attorney.
I have recently been informed (via a text message) that my siblings have put my mother's condominium up for sale. I was not included in the decision. In addition, they sold all her other assets (furniture, car, etc.)
As long as my mother has been in the assisted living facility, my sister Blanca (who holds shared financial power of attorney with our older brother) has placed her adult age autistic daughter in our mother’s condo, along with my older sister who needed a place to stay. I periodically forwarded information for market rents for the condominium (my husband is a real estate appraiser) hoping that they were doing the right thing financially for my mother as the rent along with her social security would more than cover her medical care/financial needs.
I disagree with the decision to sell the condo due to the fact that the rental market is at its peak and since the condominium is paid for out right, the income from market rent would allow for paying for a caregiver services in her assisted living, which my mother is in need of.
My questions are:
Can I stop the sale? The living trust does not state that her property (real-estate) can be sold while my mother is still living. The trust identifies that they have the power to sell after her death.
In other words, since there is no statement in the living trust that says my brother /sister can sell my mother's condominium prior to her being deceased, can my sister do this? My brother whom is in Florida in the past has told us he does not want to, nor is in the position to, make decisions regarding our mother as he is too far away in Florida.
If my older brother and sister can legally proceed with the sale, can I require access to the account to make sure the proceeds are being used in my mother's best interests, as well as have access for funds for medical needs? They have never shared and are not willing to share the financial information with me. I am concerned due to the lack of transparency. Without the financials, it is difficult to assert my medical power of attorney.
My older sister has lobbied over the years to in buying it (my younger and older sister are close). How can I assure that they get top value (in my mother’s interest) and address the deferred maintenance that occurred while they ( my older sister and niece) were living there?
Time is of the essence as the property has been on the MLS for the last 33 days. Therefore, I need to explore my options in advocating for my mother as soon as possible.
Thank you, Mary
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you tonight.

You certainly can motion the courts for an accounting here and challenge the sale.You may also have grounds for removal of the brother and sister here as powers of attorney and trustees.If there has been self dealing or or misspending you have right to challenge here and also see to remove them from the trust.

15642. (a) A trustee may be removed in accordance with the trustinstrument, by the court on its own motion, or on petition of asettlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include thefollowing: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit toadminister the trust. (3) Where hostility or lack of cooperation among cotrusteesimpairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under thecircumstances. (6) Where the sole trustee is a person described in subdivision(a) of Section 21350 or subdivision (a) of Section 21380, whether ornot the person is the transferee of a donative transfer by thetransferor, unless, based upon any evidence of the intent of thesettlor and all other facts and circumstances, which shall be madeknown to the court, the court finds that it is consistent with thesettlor's intent that the trustee continue to serve and that thisintent was not the product of fraud or undue influence. Any waiver bythe settlor of this provision is against public policy and shall bevoid. This paragraph shall not apply to instruments that becameirrevocable on or before January 1, 1994. This paragraph shall notapply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is acohabitant with, any one or more of the trustees, the person whodrafted or transcribed the instrument, or the person who caused theinstrument to be transcribed. (B) The instrument is reviewed by an independent attorney who (1)counsels the settlor about the nature of his or her intended trusteedesignation and (2) signs and delivers to the settlor and thedesignated trustee a certificate in substantially the following form: "CERTIFICATE OF INDEPENDENT REVIEW I, ___________________ , have reviewed (attorney's name) ______________________ and have counseled my (name of instrument) client, __________________ , fully and privately on the (name of client) nature and legal effect of the designation as trustee of ___________________ (name of trustee) contained in that instrument. I am so disassociated from the interest of the person named as trustee as to be in a position to advise my client impartially and confidentially as to the consequences of the designation. On the basis of this counsel, I conclude that the designation of a person who would otherwise be subject to removal under paragraph (6) of subdivision (b) of Section 15642 of the Probate Code is clearly the settlor's intent and thatintent is not the product of fraud, menace, duress, or undue influence. ____________________ ________________ " (Name of Attorney) (Date) This independent review and certification may occur either beforeor after the instrument has been executed, and if it occurs after thedate of execution, the named trustee shall not be subject to removalunder this paragraph. Any attorney whose written engagement signedby the client is expressly limited to the preparation of acertificate under this subdivision, including the prior counseling,shall not be considered to otherwise represent the client. (C) After full disclosure of the relationships of the personsinvolved, the instrument is approved pursuant to an order underArticle 10 (commencing with Section 2580) of Chapter 6 of Part 4 ofDivision 4. (7) If, as determined under Part 17 (commencing with Section 810)of Division 2, the trustee is substantially unable to manage thetrust's financial resources or is otherwise substantially unable toexecute properly the duties of the office. When the trustee holds thepower to revoke the trust, substantial inability to manage the trust's financial resources or otherwise execute properly the duties of theoffice may not be proved solely by isolated incidents of negligenceor improvidence. (8) If the trustee is substantially unable to resist fraud orundue influence. When the trustee holds the power to revoke thetrust, substantial inability to resist fraud or undue influence maynot be proved solely by isolated incidents of negligence orimprovidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the courtfinds that the designation of the trustee was not consistent with theintent of the settlor or was the product of fraud or undueinfluence, the person being removed as trustee shall bear all costsof the proceeding, including reasonable attorney's fees. (d) If the court finds that the petition for removal of thetrustee was filed in bad faith and that removal would be contrary tothe settlor's intent, the court may order that the person or personsseeking the removal of the trustee bear all or any part of the costsof the proceeding, including reasonable attorney's fees. (e) If it appears to the court that trust property or theinterests of a beneficiary may suffer loss or injury pending adecision on a petition for removal of a trustee and any appellatereview, the court may, on its own motion or on petition of acotrustee or beneficiary, compel the trustee whose removal is soughtto surrender trust property to a cotrustee or to a receiver ortemporary trustee. The court may also suspend the powers of thetrustee to the extent the court deems necessary. (f) For purposes of this section, the term "related by blood ormarriage" shall include persons within the seventh degree.

You are likely going to need a local lawyer where the condominium is located to challenge all of this.California law allows for removal here by law for such wrongdoing.

The court would have to determine if the power of attorney allows for such a sale.If the trust does not give such rights then you are correct that they may be exceeding their powers under the trust and POA.

I appreciate the chance to help you tonight.Please let me know if you have more follow up.Thanks again.

Expert:  RayAnswers replied 1 year ago.

Trust lawyer referral here.

http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

You may have good facts to block sale and remove trustee here.

Thanks again and good luck to you.