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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 38910
Experience:  Retired (mostly)
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My aunt in California has a living TRUST in which I am her

Customer Question

My aunt in California has a living TRUST in which I am her POA and successor TRUSTEE. She has been declared incapacitated. I've asked for a copy of the TRUST but she seems reluctant to give it to me, is this legal if there is nothing in the TRUST to prevent it? What do I do about this situation?
Submitted: 2 years ago.
Category: Estate Law
Expert:  socrateaser replied 2 years ago.
Hello, Who has declared your aunt incapacitated?
Customer: replied 2 years ago.
Her doctor
Customer: replied 2 years ago.
The attorney that wrote the TRUST is the person that is reluctant to give me a copy, she is somewhat of a control freak. I just need to know can she stop me from having a copy of the TRUST now that she has been declared incapacitated. She said she would give me a copy but hasn't yet.
Expert:  socrateaser replied 2 years ago.
Okay, thanks. The attorney who wrote the trust, cannot provide you with a copy of the trust, if the attorney was hired by your aunt to originally draft the trust instrument. To do so would breach the attorney's duty of confidentiality to her client. This may seem ridiculous, however, if what I'm describing is the relationship between the attorney and your aunt, then providing you with a copy of the trust, without a court order to do so, is grounds for disbarment. Cal. Bus. & Prof. Sec. Code 6068: "It is the duty of an attorney to do all of the following:...(e)(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." You may be able to get the attorney to provide you with a copy behind closed doors, but if you start a war over this, such as by asking a court to order the attorney to produce the trust, the attorney may still refuse, and the judge will be powerless to force discovery of the trust instrument. I admit that this is a very difficult situation. What you need is for your aunt to sign a letter instructing her lawyer to provide you with a copy of the trust instrument. Yes, I know that your aunt has been declared incapacitated by a physician. However, as a matter of law, ony a judge of the Superior Court can declare your aunt legally incapacitated. So, if you draft a letter and get your aunt to put anything resembling her signature on the bottom, then the attorney will have to follow that instruction -- because, also as a matter of law, the client holds the attorney-client privilege, and can waive it at any time. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using justanswer.com!