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A friend of mine is in the early stages of dementia. She is…

A friend of mine is...
A friend of mine is in the early stages of dementia. She is currently trustee of her deceased father's trust and executor of his will. The trust designates someone else to serve as trustee if she is "unable or unwilling to act". The trust also allows her to appoint someone with power of attorney to exercise all the powers of the trustee. Can she grant me power of attorney? I believe she is competent to make this decision as to power of attorney but she will soon not be in a position to reliably perform full powers of the trustee (managing financial assets, negotiating sale of life estate etc and handling complex family negotiations.)
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Answered in 3 minutes by:
1/19/2018
Roy Hadavi
Category: Estate Law
Satisfied Customers: 1,123
Experience: Attorney at Law Offices of Rosenstein & Associates
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Hi. My name is ***** ***** I am a licensed attorney with extensive estate planning and administration experience. I would be happy to provide assistance. Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

Answer: You would have to refer to the specific language of the trust. If the trust designates a specific individual(s) as the successor trustee to your friend, then that person would and should be the person that assumes the responsibilities of the trustee/executor. However, if the documents do not designate a specific individual and grant the current trustee the power to designate an individual to assume their responsibilities, then your friend may designate you as attorney-in-fact to act on her behalf.

If that is the course that you both take, then you need to make sure to do this as soon as possible and to have an attorney assist in this matter. You do not want there to be any claims of contesting the power of attorney due to your friends possible incapacity.

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Customer reply replied 1 month ago
My friend, S, is designated the Successor Trustee to her father and became trustee on his death. The document says "Should S be unable or unwilling to act, J shall act as Trustee in her place." This could be interpreted to mean, if she is unable to assume the duties at the time of the father's death. It does not expressly designate J as successor trustee to S. Would that change the answer?
Customer reply replied 1 month ago
Are you able to answer my follow up?

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No, it does not change the answer.

Although it does not state an explicit time for determine whether the "unable or unwilling to act" language, this language is understood to mean that if at any time the trustee is unable or unwilling, not just at the time of appointment.

Roy Hadavi
Category: Estate Law
Satisfied Customers: 1,123
Experience: Attorney at Law Offices of Rosenstein & Associates
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Customer reply replied 1 month ago
Okay--so the risk there is that if she does give me power of attorney, J could challenge that she was "unable or unwilling" and that he is now trustee, correct? Can he consent or waive or acknowledge that he does not challenge the power of attorney?
Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 1,841
Experience: Fully licensed attorney in Texas in private practice.
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Yes, that is correct.

J can sign the power of attorney and acknowledge acceptance of the document.

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