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Can you explain the difference between conservatorship and power of attorney? FIL has family trust but needs assistance with finances. We were told that a conservatorship was the only option in order to help him financial decisions.
Who is the Trustee of the Trust? Helping with financial decisions can occur outside of a conservatorship, which can be costly, and cumbersome, especially if a court appointed conservator is appointed.
Current Trustee is FIL. POA was given to his daughter, but she was told she can’t do anything with that POA. She was told that she needed to get a Conservatorship. I don’t understand why she should pay attorney $2,000 when she already has POA. FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
FIL would have to be competent enough to understand what he is granting with POA.
If he has already been diagnosed with cognitive issues, then you may need to sue for conservatorship, which is granted by a court, sometimes Surrogate Court.
Current Trustee is FIL. POA was given to his daughter, but she was told she can’t do anything with that POA. She was told that she needed to get a Conservatorship. I don’t understand why she should pay attorney $2,000 when she already has POA. FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
Poa doesn't act on Trust. Only a Trustee can act on a Trust. I was made POA and Trustee of Trust for my brother; that covered everything; but he was competent to be able to do that.
You can be make Trustee of Trust if your FIL is competent and wishes to do that. You need to see an attorney with your questions. I am unaware if being made a conservator gives you the right to manage a Trust. Take all the facts, including your father's competency to appoint or lack thereof (and letters of proof that he is unable to act in his own behalf; at least two by examining doctor and neuro-psych) to the attorney. Then decide what is needed and the best way to go about it. Be very certain whomever accepts a POA or Trustee (if FIL able to confer it) or a guardianship (if this must be done through the court) is willing and able. This is a big thing to take on, a fiduciary duty in which you are legally responsible for every penny in and every penny out. I had a brother able and willing who was well organized and asked me to take on this duty. It was still a very difficult learning curve for me, and a year of difficulty organizing everything with every entity. I wish you the best.
My mom made me co trustee of her trust. It worked well until she was diagnosed with something that all but insured a stroke if left untreated. She didn't want any extra treatment so we went to her attorney who suggested and prepared a document where she resigned her trust making me the trustee. My sister's trusted me and I always told them the finances were an open book. I would email them when we took the RMD, when Mom got a big dividend, and what our financial plans were for the year. The family was always welcome to attend the annual meeting with the financial planner. It worked for us. It was better for mom to resign trusteeship instead of waiting for the stroke and forcing us to go to court to take care of it.
It is so refreshing to hear when family trusts the one sibling who is taking care of the finances of a parent and said sibling is open and honest. As my mother started getting forgetful on paying bills and having difficulty writing out her checks (she still insisted on paying the bills with checks), I stepped up and assisted her. My brother and sister let me to do it because they just didn't want to "get involved". Of the 3 of us, honestly, I was the most competent. It's a curse. Hahaha. They trusted me implicit and I never gave them cause to believe otherwise. If they asked about her finances (which they never did), I would have answered them completely and honestly. I kept meticulous records and as Executrix of her will, everything in her estate was accounted for and properly taken care of. It was sometimes stressful but in the end, me, alone, taking charge was the best possible outcome.
As others had said, an attorney really needs to be involved in this. Why?
It all depends on several aspects:
1) Is FIL diagnosed with dementia, or otherwise "not competent"? Most states do not permit an individual once diagnosed with dementia or other illness that may cause competency issues to "redo legal" docs such as POA or Trusts.
In such a situation a Court would need to hear a petition (filed by someone like you or the daughter) so allow for others to step in (conservatorship or guardianship, depending on how your State law defines this). That includes to be named as Trustees on the Trust (if now NOT named) and/or to name other "successor trustees" (who takes over if something happens to the named Trustee(s)....)
2) Depends on the actual documents in place now. Is the POA a limited one written so that the rights conferred ARE "only" conferred when FIL is deemed "incompetent" (note some state use different terminology re: "competent" or "incompetent"). OR does the POA confer blanked rights to do anything from the time it was executed?
Same issue with the Trust, depends in part on how that is structured? And what is in the Trust (is a house or real estate deeded in the name of the Trust, or are bank accounts and other financial instruments held in the name of the Trust?) What was filed/recorded or not? But the POA may or may not (depending on your State law) permit a POA holder to do anything with the Trust if NOT named as a Trustee now. If named as a successor Trustee, the FIL would likely have to be deceased for the successor to take over OR the FIL would have to be deemed "incompetent" so that the successor rights might be triggered as part of a Court's determination that FIL needs a guardian or conservator to take over (again note: some of there terms and the process is State law dependent).
All to say, you really need to get an "elder care lawyer" involved who is licensed in your State, knows your State laws on these matters. And also best to get an accountant involved too (the elderly care attorney may have a recommendation) because as others had indicated there are a number of things that a Trustee must do regarding the accounting for all expenditures and income and then, there are taxes that have to be filed. This can quickly get complicated.
The fee for any outside help (legal and/or accounting) can and should be paid from the LO's assets/income; NOT you personally (assuming there are assets which I assume there must be given a Trust instrument exists).
Talk to an attorney. This is critically important for you to know. I am a POA. I am in process of being (my friend's) VA fiduciary. States may have different requirements.
This is something you need to ask an attorney, rather then try to get answers on an online forum. People will post and mean well, however they may not be qualified to answer correctly. Please call an attorney.
Debrjessee, the information on conservatorship is wrong; someone doesn't understand the issues and gave you in accurate information.
Others here have provided much better insight though. There are some good answers and insights. You do NOT need conservatorship to assist with his finances, especially if he's able to understand and work with you to create a good solution.
What I did for my father was gradually take over the bill paying, substituting the time it spent him for more time we could spend together. It relieved him of the burden of trying to write (with a partially amputated hand) as well as the whole process of bill management.
Whether or not the Trustee can become involved depends on the Trust, what activates it (such as death) and other issues. It's a much broader task in scope than being proxy pursuant to a POA or DPOA.
But Conservatorship is a more complicated process. I worked as a court reporter for the local Juvenile Court; we also occasionally covered hearings for assessment of conservatorship. They were emotionally draining for all; sometimes the parties involved were crying in court as they saw their lives being taken over by the court and a to-be-appointed conservator.
Something else of which to be aware: conservators are appointed by the court, and in my experience, typically were attorneys. They charge at what I considered legal rates; then submitted a petition to the court for approval. Some of them went beyond what was necessary, did some remodeling, then were reimbursed by the Court for their expenditures.
I remember being appalled some years later when working for a estate/probate/conservatorship attorney and seeing that a conservator had submitted a bill for close to $50K for 6 months work. That included remodeling some aspects of the individual's home. But the conservator also blocked the individual's friends from visiting. Bad situation all around.
Conservatorship is a whole different legal entity than proxy or Trustee. If you want to learn more, check out some of these resources:
conservatorship | Wex | US Law | LII / Legal Information Institute (cornell.edu) (Cornell Law is a very good source for explanation of legal issues.)
Conservatorship - Explained - The Business Professor, LLC
It really bothers me when I read that some idiot gave someone incorrect information and caused anxiety or stress, or whatever.
No need for conservatorship. If your FIL trusts his Successor Trustee implicitly, he could resign as Trustee and let the Successor Trustee take over. He remains the beneficiary of the trust, but someone else deals with the financial work of it.
My parents did this when my mom had early dementia and my perfectly competent dad was diagnosed with inoperable cancer. I took over their trust and finances, plus I had the medical POA, so I just handled everything.
It was a great way to do it, because my dad was able to help me get up to speed before he died a month later. He took me to his bank and financial advisor and made it clear that I was now in charge, and we filled out all the paperwork the financial institutions required. Once Dad died, nothing changed, and I could keep things moving seamlessly as they did before.
My parents' attorney handled the resignation from the trust paperwork, so get a trust and estate attorney to assist. It only needs to be notarized (the attorney should also be a notary or at least have one staff), and there's no need for courts or judges to be involved.
1. There are FIL assets and FIL Trust assets. Both use FIL's SS# but are TWO independent entities.
2. FIL assets are in his name. Trust assets are in the trust name. Your FIL is the Trust Grantor (owner) and likely the Initial Trustee (manager).
3. POA can manage ONLY FIL assets and upon death, the POA ends and the Executor of the Will takes over. ONLY the Trustee can manage assets in the trust.
4. If FIL can't manage the trust as the "initial trustee", there should be a clause in the trust agreement for a "successor trustee." I suspect if that's not written in the trust, it might explain why someone mentioned a conservatorship. But if FIL is competent, he can have the lawyer amend the document and add a successor trustee.
5. The goal of the trust is to own everything subject to probate. If FIL has account or insurance with on-death beneficiaries that aren't subject to probate, he might have those assets as a personal asset. If yes, the POA can manage it.
6. In addition to accounts, the trust can state it owns "all real estate, vehicles, investments, antiques, jewelry, household items, all clothing articles" (including FIL's underwear). If the real estate deed lists the trust as the owner, the trust pays real estate taxes, HOA, etc. The trust allows FIL to live in the house.
6. It can get complicated.
IE: If FIL is the owner for personal assets and trustee for trust assets, he can move money back and forth without having to think about the implications of two separate asset pots. That's easy.
Now, a SS check is in his name & thus a FIL asset. If the money goes into FIL bank account, the POA can access it. BUT if FIL has IRS auto-deposit the check to a FIL Trust bank account, only a Trustee can access it -- NOT the POA or Executor of the Will.
Say a POA for FIL's health needs $$$ to pay FIL's medical bill & FIL's money is in the trust -- the POA has to get the Trustee to pay the bill.
Say FIL lives in his house but the trust owns it and FIL is incompetent. The successor trustee has full authority to manage assets & could sell the house, even if FIL wants to stay - yes, there's a fiduciary responsibility to work for only in FIL's best interests & it's a crime if the trustee doesn't, but if the trustee can justify why house should be sold, it becomes a legal debate where the trustee could win.
In short ( I assume FIL is listed as the Initial Trustee)
FIL is alive and mentally competent: - As owner of personal accounts and initial trustee of trust accounts, he can move money back and forth as he wishes. - If he trusts you, he can simply approve your right to transact on his behalf (It's his decisions, you're just the helpful grunt). - He can make you a co-owner or someone authorized to talk to banks, financial institutions, etc for his personal accounts. I think it's also true for trust accounts, because you're still acting under his initial trustee authority; you're not making independent decisions for him.
FIL is alive, but unwilling or unable: - A POA manages personal assets and a Successor Trustee manages trust assets.
FIL has died: - The POA ends and the Executor of the Will takes over for FIL's personal assets. - FIL's SS# terminates & the trustee needs to get a new SS# for the trust. - The successor trustee takes over the management & distribution of trust assets.
NOTES: 1) I am not a lawyer; this is just my understanding to date (based on paying a lawyer way too much money for answers). 2) My comments are based on a boiler plate trust agreement with specifics like if the initial trustee is unwilling or unable, Relative 1 is the successor trustee; and if Relative 1 is unwilling or unable, Relative 2 is the successor trustee. 3) You probably should read your FIL Trust to understand each clause and see if there is anything that needs to be changed or added. 4) Others are posting you need legal advice. You might start with the lawyer who wrote the FIL Trust
The absolute here is that you consult with a good CELA (most are not taking new cases due to high demand) or a well-reviewed probate / estate firm for legal guidance on all of this. Your FIL can arrange for this to be paid from his assets so that you don't incur any legal expenses.
Of course, it's best if he can attend the appt with you, either in person or via Zoom. Most everything can be done remotely these days and it makes everything so much easier.
A POA that transfers to Executor upon death is relatively straight forward, but with a trust account in play, an attorney needs to be involved.
A Conservatorship, as others have said, is a judicial appointment requiring a hearing and appearance. Letters of Appointment follow and you obtain certified copies of the Order and Letter from the clerk of court, once issued, at about $10. per copy.
Depending on the amount of assets involved, a trust can be very complicated and I would not step into that myself; a Conservatorship is complex enough. Unless you're an accountant by trade, I'd give the trust management to an attorney and act only in the capacity of your FIL's POA. That would allow you to assist in managing his basic financials, but once that gets into the realm of Conservatorship, you're required to do an initial estate inventory w/i 90 days for the court and then an annual report, with a final accounting once the estate is all completed.
My parents assigned me as alternate to one another in all matters and we had all bases covered. The medical POA was difficult in the final decision that I had to make for my Dad, but allowed me to oversee Mom's care in the nsg home. I was Executor under Dad's Will and DPOA for Mom. All was fine (having all account passwords, etc) until my NPD, disinherited sibling came along and pushed for a Guardianship and Conservatorship with a corporation at the helm; an effort to remove me from involvement. I fought it but ended up agreeing to the G&C appointment. The sole advantage is in accessing the SSA benefits account; the SSA doesn't recognize a POA (more paperwork for Rep Payee of her SSA bens), but I wasn't about to have strangers overseeing my beloved Mom's care. It's just a lot more paperwork.
With the complexity in the bit that you describe, and given the hoops that I've had to jump through in managing an estate of moderate complexity with properties in 2 states, etc., if there are sizable assets, I'd advise that you not assume the roles of managing it all and have a law firm do it. You can be there for your FIL in every other way and not be burdened with the financial details, the reporting, accounting, etc. It is a lot of work.
Call around and find the fees that different places charge, discuss with your FIL, and after meeting with an attorney, hand it over to professionals. I've seen it quoted in this forum: "If you want to make someone's life miserable, make them a POA."
It truly is more work than one should volunteer for; I'm doing it out of love for my parents, but it's a lot.
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FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
If he has already been diagnosed with cognitive issues, then you may need to sue for conservatorship, which is granted by a court, sometimes Surrogate Court.
FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
It all depends on several aspects:
1) Is FIL diagnosed with dementia, or otherwise "not competent"? Most states do not permit an individual once diagnosed with dementia or other illness that may cause competency issues to "redo legal" docs such as POA or Trusts.
In such a situation a Court would need to hear a petition (filed by someone like you or the daughter) so allow for others to step in (conservatorship or guardianship, depending on how your State law defines this). That includes to be named as Trustees on the Trust (if now NOT named) and/or to name other "successor trustees" (who takes over if something happens to the named Trustee(s)....)
2) Depends on the actual documents in place now. Is the POA a limited one written so that the rights conferred ARE "only" conferred when FIL is deemed "incompetent" (note some state use different terminology re: "competent" or "incompetent"). OR does the POA confer blanked rights to do anything from the time it was executed?
Same issue with the Trust, depends in part on how that is structured? And what is in the Trust (is a house or real estate deeded in the name of the Trust, or are bank accounts and other financial instruments held in the name of the Trust?) What was filed/recorded or not? But the POA may or may not (depending on your State law) permit a POA holder to do anything with the Trust if NOT named as a Trustee now. If named as a successor Trustee, the FIL would likely have to be deceased for the successor to take over OR the FIL would have to be deemed "incompetent" so that the successor rights might be triggered as part of a Court's determination that FIL needs a guardian or conservator to take over (again note: some of there terms and the process is State law dependent).
All to say, you really need to get an "elder care lawyer" involved who is licensed in your State, knows your State laws on these matters. And also best to get an accountant involved too (the elderly care attorney may have a recommendation) because as others had indicated there are a number of things that a Trustee must do regarding the accounting for all expenditures and income and then, there are taxes that have to be filed. This can quickly get complicated.
The fee for any outside help (legal and/or accounting) can and should be paid from the LO's assets/income; NOT you personally (assuming there are assets which I assume there must be given a Trust instrument exists).
See another attorney ASAP (while FIL is still pretty good mentally) to determine whether the existing POA is a durable one.
This is critically important for you to know.
I am a POA. I am in process of being (my friend's) VA fiduciary.
States may have different requirements.
Gena Galenski
Touch Matters
Others here have provided much better insight though. There are some good answers and insights. You do NOT need conservatorship to assist with his finances, especially if he's able to understand and work with you to create a good solution.
What I did for my father was gradually take over the bill paying, substituting the time it spent him for more time we could spend together. It relieved him of the burden of trying to write (with a partially amputated hand) as well as the whole process of bill management.
Whether or not the Trustee can become involved depends on the Trust, what activates it (such as death) and other issues. It's a much broader task in scope than being proxy pursuant to a POA or DPOA.
But Conservatorship is a more complicated process. I worked as a court reporter for the local Juvenile Court; we also occasionally covered hearings for assessment of conservatorship. They were emotionally draining for all; sometimes the parties involved were crying in court as they saw their lives being taken over by the court and a to-be-appointed conservator.
Something else of which to be aware: conservators are appointed by the court, and in my experience, typically were attorneys. They charge at what I considered legal rates; then submitted a petition to the court for approval. Some of them went beyond what was necessary, did some remodeling, then were reimbursed by the Court for their expenditures.
I remember being appalled some years later when working for a estate/probate/conservatorship attorney and seeing that a conservator had submitted a bill for close to $50K for 6 months work. That included remodeling some aspects of the individual's home. But the conservator also blocked the individual's friends from visiting. Bad situation all around.
Conservatorship is a whole different legal entity than proxy or Trustee. If you want to learn more, check out some of these resources:
conservatorship | Wex | US Law | LII / Legal Information Institute (cornell.edu)
(Cornell Law is a very good source for explanation of legal issues.)
Conservatorship - Explained - The Business Professor, LLC
It really bothers me when I read that some idiot gave someone incorrect information and caused anxiety or stress, or whatever.
My parents did this when my mom had early dementia and my perfectly competent dad was diagnosed with inoperable cancer. I took over their trust and finances, plus I had the medical POA, so I just handled everything.
It was a great way to do it, because my dad was able to help me get up to speed before he died a month later. He took me to his bank and financial advisor and made it clear that I was now in charge, and we filled out all the paperwork the financial institutions required. Once Dad died, nothing changed, and I could keep things moving seamlessly as they did before.
My parents' attorney handled the resignation from the trust paperwork, so get a trust and estate attorney to assist. It only needs to be notarized (the attorney should also be a notary or at least have one staff), and there's no need for courts or judges to be involved.
If you read the POA it specifically names a person.
If you look at the assets, they should be named in the name of the trust, this means FIL doesn't actually own the assets.
If there is not a successor trustee named, FIL will need to have the trust updated by an attorney to add a successor trustee.
POA do NOT give anyone any ability to administer a trust.
This really is not a DIY. Have a consult with a CELA before you do anything else.
1. There are FIL assets and FIL Trust assets. Both use FIL's SS# but are TWO independent entities.
2. FIL assets are in his name. Trust assets are in the trust name. Your FIL is the Trust Grantor (owner) and likely the Initial Trustee (manager).
3. POA can manage ONLY FIL assets and upon death, the POA ends and the Executor of the Will takes over. ONLY the Trustee can manage assets in the trust.
4. If FIL can't manage the trust as the "initial trustee", there should be a clause in the trust agreement for a "successor trustee." I suspect if that's not written in the trust, it might explain why someone mentioned a conservatorship. But if FIL is competent, he can have the lawyer amend the document and add a successor trustee.
5. The goal of the trust is to own everything subject to probate. If FIL has account or insurance with on-death beneficiaries that aren't subject to probate, he might have those assets as a personal asset. If yes, the POA can manage it.
6. In addition to accounts, the trust can state it owns "all real estate, vehicles, investments, antiques, jewelry, household items, all clothing articles" (including FIL's underwear). If the real estate deed lists the trust as the owner, the trust pays real estate taxes, HOA, etc. The trust allows FIL to live in the house.
6. It can get complicated.
IE: If FIL is the owner for personal assets and trustee for trust assets, he can move money back and forth without having to think about the implications of two separate asset pots. That's easy.
Now, a SS check is in his name & thus a FIL asset. If the money goes into FIL bank account, the POA can access it. BUT if FIL has IRS auto-deposit the check to a FIL Trust bank account, only a Trustee can access it -- NOT the POA or Executor of the Will.
Say a POA for FIL's health needs $$$ to pay FIL's medical bill & FIL's money is in the trust -- the POA has to get the Trustee to pay the bill.
Say FIL lives in his house but the trust owns it and FIL is incompetent. The successor trustee has full authority to manage assets & could sell the house, even if FIL wants to stay - yes, there's a fiduciary responsibility to work for only in FIL's best interests & it's a crime if the trustee doesn't, but if the trustee can justify why house should be sold, it becomes a legal debate where the trustee could win.
In short ( I assume FIL is listed as the Initial Trustee)
FIL is alive and mentally competent:
- As owner of personal accounts and initial trustee of trust accounts, he can move money back and forth as he wishes.
- If he trusts you, he can simply approve your right to transact on his behalf (It's his decisions, you're just the helpful grunt).
- He can make you a co-owner or someone authorized to talk to banks, financial institutions, etc for his personal accounts. I think it's also true for trust accounts, because you're still acting under his initial trustee authority; you're not making independent decisions for him.
FIL is alive, but unwilling or unable:
- A POA manages personal assets and a Successor Trustee manages trust assets.
FIL has died:
- The POA ends and the Executor of the Will takes over for FIL's personal assets. - FIL's SS# terminates & the trustee needs to get a new SS# for the trust.
- The successor trustee takes over the management & distribution of trust assets.
NOTES:
1) I am not a lawyer; this is just my understanding to date (based on paying a lawyer way too much money for answers).
2) My comments are based on a boiler plate trust agreement with specifics like if the initial trustee is unwilling or unable, Relative 1 is the successor trustee; and if Relative 1 is unwilling or unable, Relative 2 is the successor trustee.
3) You probably should read your FIL Trust to understand each clause and see if there is anything that needs to be changed or added.
4) Others are posting you need legal advice. You might start with the lawyer who wrote the FIL Trust
GOOD LUCK!
The absolute here is that you consult with a good CELA (most are not taking new cases due to high demand) or a well-reviewed probate / estate firm for legal guidance on all of this. Your FIL can arrange for this to be paid from his assets so that you don't incur any legal expenses.
Of course, it's best if he can attend the appt with you, either in person or via Zoom. Most everything can be done remotely these days and it makes everything so much easier.
A POA that transfers to Executor upon death is relatively straight forward, but with a trust account in play, an attorney needs to be involved.
A Conservatorship, as others have said, is a judicial appointment requiring a hearing and appearance. Letters of Appointment follow and you obtain certified copies of the Order and Letter from the clerk of court, once issued, at about $10. per copy.
Depending on the amount of assets involved, a trust can be very complicated and I would not step into that myself; a Conservatorship is complex enough. Unless you're an accountant by trade, I'd give the trust management to an attorney and act only in the capacity of your FIL's POA. That would allow you to assist in managing his basic financials, but once that gets into the realm of Conservatorship, you're required to do an initial estate inventory w/i 90 days for the court and then an annual report, with a final accounting once the estate is all completed.
My parents assigned me as alternate to one another in all matters and we had all bases covered. The medical POA was difficult in the final decision that I had to make for my Dad, but allowed me to oversee Mom's care in the nsg home. I was Executor under Dad's Will and DPOA for Mom. All was fine (having all account passwords, etc) until my NPD, disinherited sibling came along and pushed for a Guardianship and Conservatorship with a corporation at the helm; an effort to remove me from involvement. I fought it but ended up agreeing to the G&C appointment. The sole advantage is in accessing the SSA benefits account; the SSA doesn't recognize a POA (more paperwork for Rep Payee of her SSA bens), but I wasn't about to have strangers overseeing my beloved Mom's care. It's just a lot more paperwork.
With the complexity in the bit that you describe, and given the hoops that I've had to jump through in managing an estate of moderate complexity with properties in 2 states, etc., if there are sizable assets, I'd advise that you not assume the roles of managing it all and have a law firm do it. You can be there for your FIL in every other way and not be burdened with the financial details, the reporting, accounting, etc. It is a lot of work.
Call around and find the fees that different places charge, discuss with your FIL, and after meeting with an attorney, hand it over to professionals. I've seen it quoted in this forum: "If you want to make someone's life miserable, make them a POA."
It truly is more work than one should volunteer for; I'm doing it out of love for my parents, but it's a lot.
Best to you and yours.