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Loren, Attorney
Category: Estate Law
Satisfied Customers: 33030
Experience:  30 years experience in the practice of estate law.
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My mother signed a living trust in 2004. In 2005, she gave

Customer Question

My mother signed a living trust in 2004. In 2005, she gave me a general power of attorney. In that power of attorney it states "convey in trust " and "convey in trust or otherwise". I used that POA to sign some trust documents for my mother. One attorney says, under California Law, a trustee cannot delegate her powers to act under a power of attorney". The Trust agreement does not mention how a POA can be used or alternatively does not negate the use of a POA. What is your opinion?
Submitted: 2 years ago.
Category: Estate Law
Expert:  Loren replied 2 years ago.
Thank you for using JustAnswer. I am Loren, a licensed attorney. I will do whatever I can to answer your question and provide you excellent service.
Unfortunately, since a trustee is in a fiduciary position, in order to delegate trustee authority through a POA, that ability must be specifically stated in the provisions of the trust itself.
Therefore, as a POA, assuming the POA granted authority, you could transfer assets personally titled to your mother TO the trust, but not FROM the trust.
I hope this is helpful. If you have more follow up questions please let me know. It is never a problem.
Thank you.
Customer: replied 2 years ago.
I did not use the POA to transfer title to any properties. She signed the grant deeds in title. The title company accepted the POA to do some of the administrative actions in title but not the grant deed. I signed administrative papers for the Trust to enable the property for sale, et cetera. (purchase agreement), checking accounts (I had a separate power of attorney signed by my mother for all banking transactions).
Expert:  Loren replied 2 years ago.
Legally, a trustee may not delegate trustee functions via a POA unless specifically allowed in a trust agreement. However, if no one challenges the actions and the title company will insure the POA actions, it should not, as a practical matter, be a problem.
Customer: replied 2 years ago.
My brother has challenged these actions 4 years after the actions were taken by me. This all occurred in 2006 through 2009.
Expert:  Loren replied 2 years ago.
Well, unless you have a trust agreement that allows the POA you may have a problem. However, if you had title insurance there may be coverage for whomever is in title.
Customer: replied 2 years ago.
If all this paperwork during the escrow period and other documentation was acknowledged by mother throughout all these years (both she and I are real estate brokers, she passed away in 2011), doesnt that indicate that she gave her approval of these actions? Title insurance was obtained on all property transfers.
Expert:  Loren replied 2 years ago.
It is not a matter of her approval. The issue is that it was not appropriate for her to not sign the required documents as trustee. If she was unable to fulfill her fiduciary duties to the trust then a successor should have been named or appointed. I realize this is probably not the answer you were hoping to receive. Also, please remember that this is not necessarily a moral judgement on my part. As a professional, however, I am sometimes placed in the position of having to deliver news which is not favorable to a customer's legal position, but accurately reflects their position under the law. I hate it, but it happens and I only ask that you not penalize me with a bad or poor rating for having to deliver less than favorable news.Best regards. Loren
Customer: replied 2 years ago.
Our defense to this position would be how a jury is instructed to evaluate this process.Does the judge state that this is the law and instruct the jury to follow the law or are they allowed their opinion based upon the evidence? Also, what is your opinion on the statue of limitations in this case? I was told that it is 3 years for fraud upon discovery of these events. My brother took my mother to all of these signings (4 properties) in the title company and knew then of this information.
Expert:  Loren replied 2 years ago.
The problem you face is the your lack of legal authority to take the actions you took.
I am not really in a position to comment on your litigation strategy, as that is more appropriately addressed to your local counsel. However, the judge will instruct them to apply the law to the facts. Your brother participating in the transaction is not a safe harbor if he was unaware of the lack of legal authority.
The statute of limitations may be your best defense for actions against you, personally. It does not really cure the transaction defects, though.
Best regards.
Customer: replied 2 years ago.
Just some final comments if I may...It was determined that my brother also signed my mothers name on bank checks (hundreds of them) and also at the same time used her credit cards without being an authorized user on her accounts at the same time that I was using the POA for the Trust. Since his actions with these accounts were not legally obtained , does that make him responsible for the Trust to take action against him.?
Expert:  Loren replied 2 years ago.
Yes, if he misappropriated trust assets he can be held liable and forced to return the assets or pay the value.
Expert:  Loren replied 2 years ago.
Have I answered your questions?

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