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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39147
Experience:  Retired (mostly)
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Hello again,

I have the files. You can delete them from mediafire if you wish, so that others cannot review their contents in the future.

Please ask some specific questions so that I can narrow the focus of my answer.

Thanks in advance.
Customer: replied 4 years ago.

Can you tell me how legally sound they are? In addition, what exactly do the documents spell out regarding my legal role? I have full responsibility for all my mother's financial/health dealing? Do I need to confer with my mother on any of the matters lined out?Reference Disabilities Outlined and Power of Attorney in particular please. Can you outline for me what my obligations are and how am I legally obligated to carry them out?

1. The power of attorney is missing page 3. You appear to have uploaded two copies of page 2. I can't comment further here without page 3. Pleae try again.

2. The Last Will and Testament is a typical "pourover will." It's sole purpose is to permit you to collect any assets not assigned to the testator's trust at death, and deposit those assets into the trust for distribution to the ultimate beneficiaries named in the trust instrument.

3. The trust is unusually simple. It provides that all "tangible personal property" (i.e., clothing, furniture, motor vehicles, vessels, collectables, physical rare metals, jewelry, artwork, plants, animals -- effectively everything other than real estate, securities and cash). shall be distributed solely to you. All real estate or intangible property (i.e., cash, stocks, bonds, notes, bank and investment accounts, certificates of deposit, rental contract, royalty agreement, copyrights, patents, trademarks, etc.), is to be distributed to the "heirs-at-law," which under NMSA 45-1-201(A)(23), means those persons entitled to take under NMSA 45-2-103. Note that under trust section XIII D., all grandchildren are intentionally omitted from any distribution. This is potentially a very bad provision, because it means that if any child dies, then that child's entire line of decedents is completely omitted from the trust distribution.

Hope this helps.

Customer: replied 4 years ago.

I am floored. I completely misunderstood every document. So, you are saying I am not responsible or legally able to tend to my mother's business, according to the will? Are there any beneficiaries named in the Will? I cannot detect or understand who is named? So, all will go to probate after I go through the trouble of assembling all my mother's business? I too decided that the provision of excluding grandchildren was a poor decision or provision. Here and now do I not have legal control over cash assets for the benefit of her care? So, I am not obligated or given the legal privilege of working on her behalf under any circumstance?

I can't competently answer your questions, until you upload page three (3) of the power of attorney document.

Can you do that for me?
Customer: replied 4 years ago.

OK. Socrateaser. I will need to regroup and send you the information you need. It will need to allow me time. I must leave for mother's. Back when I can. I may just need to acknowledge I am working a blue streak without the basis I truly need?

On second thought, I believe I can answer your question without review of the power of attorney missing page.

In the trust section VII A, the grantor (your mother) is authorized to appoint a new trustee in writing. If you are appointed under this provision, then you would have full power over the trust assets. Otherwise, under section VII B, Carlos would become the successor trustee at your mother's disability or death, and he would control the trust assets.

"Disability," for the purposes of the trust, is defined in Section IV B, as, "legal disability [decreed by the court] or the inability to provide prompt and intelligent consideration to financial matters by reason of illness or mental or physical disability. The determination of whether the Grantor has a disability shall be made by the Grantor's most recent attending physician."

So, if your goal is to control the trust assets, then you must have your mother sign a document appointing you as trustee, and she must not have been previously determined to be disabled before that document is signed. That would override Carlos' rights as successor under the trust provisions.

Concerning property of your mother which is not assigned or otherwise funded to the trust, the power of attorney would presumably grant you authority to manage those issues. The reason for this is that the Will speaks only at death. Until your mother passes away, property not assigned or otherwise funded to the trust remains your mother's personal property, and it is subject to her control, and to the person who holds her power of attorney.

Concerning your mother's health care, there would need to be a health care power of attorney to deal with this issue, as it is separate and apart from a financial power of attorney.

Note that the comments re the power of attorney are somewhat speculative, because I have not reviewed the entire document. Until I do, I'm filling the gaps with what's typical, rather than with what I would know to be true.

Hope this helps.

Customer: replied 4 years ago.

Socrateaser, the page 3 link follows. May I have you look this over and then we can complete our session.

Okay, got it, thank you.

My previous answer is accurate, in my opinion, without further modification. I was concerned that the POA was not "durable," and would terminate if your mother became legally disabled/incapacitated. However, the last paragraph of page 3 provides that the POA is "durable," and survives your mother's disability/incapacity.

Hope this helps.
Customer: replied 4 years ago.

So, does this mean that all the legal documents you reviewed, including POA, only give me the power or legal right to be the financial or business work mule? I have used this POA for everything, including making decisions at the hospital, clinics and the like. Do I have that kind of POA being it is stated in the Trust Disability Defined? Does this mean I need to go to Mother for every decision even though she IS disabled/incapacitated? I thought I understood that Carlos has no Trustee role unless I am unwilling of unable?

A complete estate plan generally comprises: (1) financial power of attorney; (2) health care power of attorney (aka advance health care directive); (3) pourover will; (4) trust.

1. The financial power of attorney permits the holder to manage the financial interests, accounts, property, etc., of the grantor. However, it does not permit the holder to step into the shoes of the trustee of a trust. Therefore, any property which is funded to the trust, cannot be managed through the power of attorney. To manage trust property requires that the manager must be appointed trustee.

2. A health care power of attorney only operates to permit the holder to manage the grantor's personal health care decisions, whenever the grantor cannot make those decisions for herself. No other powers are granted -- not even the power to pay for health care services is included (which, instead requires a financial power of attorney).

3. A pourover will does nothing other than to permit an executor the power to transfer into a trust, assets, accounts, property, etc. which is not already assigned to a trust, at the testator's death. The goal is to make the trust provisions, the sole determiner of the testator's final distribution instructions re the estate.

4. The trust is the vehicle in which the grantor places substantially all of her property interests, and describes how those interests are to be disposed of during life (inter vivos) and after death (post mortem).

My reading of your mother's estate plan is that you were granted the power of attorney, Carlos was made successor trustee, no one was given the power to make health care decisions during your mother's incapacity/disability (leaving such decisions to her attending physician, and to a court, if necessary), and that the only option in all of this, is that if your mother signs a writing appointing a person (whether you or someone else) as trustee during her lifetime, then that person can control all trust property.

Assuming that no trustee appointment has been made, then:

1. You have the power to manage any and all property not assigned to the trust, while your mother is alive, and the power to collect and assign to the trust any of the same property after your mother passes away.

2. Carlos has the power to manage and distribute all property assigned to the trust during your mother's life and after her death.

3. No one has been granted health care decision making powers.

4. Assuming that your mother appointed (or appoints) you as trustee in writing, then you would acquire all of Carlos' powers.

5. The only power that neither you nor Carlos has is the power to deal with health care decisions. Obviously, if there is a health care power of attorney, and you omitted it from the documents presented, then that health care power of attorney would control on health related issues.

That's the whole bag-o-worms.

Hope this helps.

Customer: replied 4 years ago.

This is my closing question: Why does the Trust open with, "This Living Trust is an Agreement between Olivia Brooks (Grantor or Beneficiary) and E. Patricia Montoya (The Trustee)? General POA "hereby appoint E. Patricia Montoya, as my Attorney-in-Fact (Agent) If unable Carlos Brooks as successor Agent? After 21 years of assisting and working for my Mother's personal needs, including upkeep of her property, etc., investments, and the like, I may just relinquish this job, if Carlos has any or more power.

Why does the Trust open with, "This Living Trust is an Agreement between Olivia Brooks (Grantor or Beneficiary) and E. Patricia Montoya (The Trustee)?

A: Well, look at that -- I wasn't reading carefully enough. The typical revocable trust always appoints the grantor as trustee. This trust appointed you as trustee. This means that you have always been the trustee, and so you don't need a separate writing, and Carlos would only become successor if you resigned or passed away.

My apologies. You already control all of the trust property.

General POA "hereby appoint E. Patricia Montoya, as my Attorney-in-Fact (Agent) If unable Carlos Brooks as successor Agent? After 21 years of assisting and working for my Mother's personal needs, including upkeep of her property, etc., investments, and the like, I may just relinquish this job, if Carlos has any or more power.

A: This is consistent with what I already explained. You are the holder of the power of attorney.

Based upon all of the above, you have all financial powers over all of your mother's property, whether or not assigned to the trust.

The only power not granted, is the power to make health care decisions. Absent a health care power of attorney, such decisions remain under your mother's control, and to her attending physicians.

Note: Because you have financial control, you can manage where your mother resides -- but, without the health care power of attorney, you cannot consent to your mother's course of care -- which makes things a bit uncertain as to outcome.

Once again, my apologies. It's a good thing that you pointed out what was right in front of my "virtual" nose -- because I totally missed the most important sentence in the entire trust instrument.

Hope this helps.
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