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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 40993
Experience:  Texas lawyer for 30 years in Estate law
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This question is trust laws. Father recently

Customer Question

This question is for California trust laws. Father recently passed away. Mother has early onset dementia is 88 years old. Daughter has been placed as agent for mother on durable poa son is executer, this was done in 2011, should mother not relinquish her power over to son to become successor trustee does the daughter as agent have authority without protest to take care of (ie; pay bills, manage business, care for her, etc..) ?? Or does the son have to relinquish his authority in this area of care and finance to the agent of the dpoa? The only person listed on the dpoa is the daughter, which covers all areas of finance, personal care of mother and the business they still own.
Submitted: 2 years ago.
Category: Estate Law
Expert:  RayAnswers replied 2 years ago.
Hi and welcome to JA. I am Ray and will b e the expert helping you today.

I would agree with you that mother should relinquish her office here as successor trustee.
She lacks the capacity to carry out the duites of this title.If she will not agree here the beneficiaries can petition the court in California tp remove her from being trustee.

This falls under 16542(2)..arguably she is unfit here and the court would see that..
(2) Where the trustee is insolvent or otherwise unfit to administer the trust.
15640. A trustee who has accepted the trust may resign only by one of the following methods: (a) As provided in the trust instrument. (b) In the case of a revocable trust, with the consent of the person holding the power to revoke the trust. (c) In the case of a trust that is not revocable, with the consent of all adult beneficiaries who are receiving or are entitled to receive income under the trust or to receive a distribution of principal if the trust were terminated at the time consent is sought. If a beneficiary has a conservator, the conservator may consent to the trustee's resignation on behalf of the conservatee without obtaining court approval. Without limiting the power of the beneficiary to consent to the trustee's resignation, if the beneficiary has designated an attorney in fact who has the power under the power of attorney to consent to the trustee's resignation, the attorney in fact may consent to the resignation. (d) Pursuant to a court order obtained on petition by the trustee under Section 17200. The court shall accept the trustee's resignation and may make any orders necessary for the preservation of the trust property, including the appointment of a receiver or a temporary trustee. 15641. The liability for acts or omissions of a resigning trustee or of the sureties on the trustee's bond, if any, is not released or affected in any manner by the trustee's resignation. 15642. (a) A trustee may be removed in accordance with the trust instrument, by the court on its own motion, or on petition of a settlor, cotrustee, or beneficiary under Section 17200. (b) The grounds for removal of a trustee by the court include the following: (1) Where the trustee has committed a breach of the trust. (2) Where the trustee is insolvent or otherwise unfit to administer the trust. (3) Where hostility or lack of cooperation among cotrustees impairs the administration of the trust. (4) Where the trustee fails or declines to act. (5) Where the trustee's compensation is excessive under the circumstances. (6) Where the sole trustee is a person described in subdivision (a) of Section 21350 or subdivision (a) of Section 21380, whether or not the person is the transferee of a donative transfer by the transferor, unless, based upon any evidence of the intent of the settlor and all other facts and circumstances, which shall be made known to the court, the court finds that it is consistent with the settlor's intent that the trustee continue to serve and that this intent was not the product of fraud or undue influence. Any waiver by the settlor of this provision is against public policy and shall be void. This paragraph shall not apply to instruments that became irrevocable on or before January 1, 1994. This paragraph shall not apply if any of the following conditions are met: (A) The settlor is related by blood or marriage to, or is a cohabitant with, any one or more of the trustees, the person who drafted or transcribed the instrument, or the person who caused the instrument 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 trustee designation and (2) signs and delivers to the settlor and the designated 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 before or after the instrument has been executed, and if it occurs after the date of execution, the named trustee shall not be subject to removal under this paragraph. Any attorney whose written engagement signed by the client is expressly limited to the preparation of a certificate 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 persons involved, the instrument is approved pursuant to an order under Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of Division 4. (7) If, as determined under Part 17 (commencing with Section 810) of Division 2, the trustee is substantially unable to manage the trust's financial resources or is otherwise substantially unable to execute properly the duties of the office. When the trustee holds the power to revoke the trust, substantial inability to manage the trust' s financial resources or otherwise execute properly the duties of the office may not be proved solely by isolated incidents of negligence or improvidence. (8) If the trustee is substantially unable to resist fraud or undue influence. When the trustee holds the power to revoke the trust, substantial inability to resist fraud or undue influence may not be proved solely by isolated incidents of negligence or improvidence. (9) For other good cause. (c) If, pursuant to paragraph (6) of subdivision (b), the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney's fees. (d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor's intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney's fees. (e) If it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee and any appellate review, the court may, on its own motion or on petition of a cotrustee or beneficiary, compel the trustee whose removal is sought to surrender trust property to a cotrustee or to a receiver or temporary trustee. The court may also suspend the powers of the trustee to the extent the court deems necessary. (f) For purposes of this section, the term "related by blood or marriage" shall include persons within the seventh degree. 15643. There is a vacancy in the office of trustee in any of the following circumstances: (a) The person named as trustee rejects the trust. (b) The person named as trustee cannot be identified or does not exist. (c) The trustee resigns or is removed. (d) The trustee dies. (e) A conservator or guardian of the person or estate of an individual trustee is appointed. (f) The trustee is the subject of an order for relief in bankruptcy. (g) A trust company's charter is revoked or powers are suspended, if the revocation or suspension is to be in effect for a period of 30 days or more. (h) A receiver is appointed for a trust company if the appointment is not vacated within a period of 30 days.

Here the first step in removing a trustee is a petition filed with the probate court requesting removal. Only someone with an interest in the trust -- typically a beneficiary -- has the right to file such a petition. The probate court may ask for evidence or documentation in order to make its decision. When the probate court finds significant lack of capacity , it can remove the trustee and appoint a new and different successor trustee.

If she will not voluntarity agree here it is possibel to use the ocurts to force the issue.

I appreciate the chance to help you today.Please let me know if have more follow up.
Expert:  RayAnswers replied 2 years ago.
Sample petition here for removal in Superior Court..

You would have to modify this to your facts or use a lawyer to do so.Thanks again.