Legal Question in Wills and Trusts in California

Dear Law Guru,

Mom has (throat cancer/diabetes/recent heart attack), Dad has(lung cancer/COPD), both terminal cancer. I am their son Robert Jr. (live out of state), and taking care of them (24 hrs) here in San Diego in their home. I have an older sister (lives in town), and a younger brother (lives out of state). I have taken off work for the past 3 months to care for my parents until the end of the month. Obviously, if they are much worse I will stay. My sister then stated that she will help care for my parents along with an outside caregiver who will come to the house 2-3 days a week at my parents expense. We also have Hospice helping (nurse 1-2 times a week) and hospice helping with bathing(twice a week). My parents have a Living Trust(sister,brother and myself are equal beneficiaries, 33 1/3% each). It is a family trust, a Probate Avoidance Trust. It was signed and dated by an attorney and both my parents back in 2003.

My sister is the trustee after my Mom and Dad are deceased. I would be next in line. My parents have approximately 3-6 months to live, but it could be at anytime. I am concerned since my sister and I have had a strained relationship for the past 2 years that she has her own agenda. My sister has repeatedly talked to my mom and dad about getting power of attorney authorization to handle finances as soon as possible. My mom is in no rush but the subject is being brought up continuously because my sister says they can go anytime and doesn't want the assets frozen. She has also explained to my mom and dad in conversation that she has to continue to work part time at her present full time career job ( Job Locator for 15-20 years) to keep her benefits and that her husbands job (Roofing Contractor) has been slow. My sister wants to handle the bills for my mom, but I am skeptical. I am concerned for my parents that when she obtains power of attorney that she will utilize their funds any way she sees fit. She will also use that power to determine their health care also. I was looking into Springing Power of Attorney so that my mom could maintain control until she no longer had the mind or health to do so. Currently she is stable and able to make good decisions. My parents are going to be 80 and 79.

My question is can she do this and what should I be doing besides getting an attorney to protect my mom and dad and my interests before and after my parents are deceased? Any suggestions? How should household and non-monetary belongings be divided?

Thank you for your time and consideration,

Sincerely,

Bob Roberts


Asked on 8/04/10, 8:24 am

2 Answers from Attorneys
Aaron Feldman Feldman Law Group

If the trust is set up properly, then there are usually two provisions that would already give your sister the power she needs to take care of finances when the time comes. First, there may be a provision that the successor trustee (your sister) assumes power when the current trustees (your parents) are deemed not competent by usually 2 physicians. This would make your sister the acting trustee before your parents die. Secondly, if the trust is in good order, then your sister automatically becomes the trustee upon your parents deaths and can immediately take control of finances. I don't see the need to do anything any time sooner. If your Mom wanted to, she could resign as trustee which would also trigger your sister assuming control of the trust. This is general advice and only an attorney reading the actual trust/estate plan documents can give you actual advice about your specific situation.

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Answered on 8/09/10, 8:33 am
Scott Brear Law Practice of Scott Irvin Brear

Sadly, this is a very common these days!. I agree with the first answer for the most part, but I would be very concerned about what the sisters might take before the inheritance just to suit their own financial needs. If they get hold of the checkbook the temptation would be great. You might want to talk to an attorney about a conservatorship, with a conservator who is independent from the family. This would cost estate funds in fees, but might be the best way to protect parent's assets whilst they are still alive.

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Answered on 8/09/10, 10:29 am


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