Legal Question in Wills and Trusts in California
elder abuse/family trust
My parents made up a family trust (California 2003) dividing up everything equally for my brother and I, including power of attorney. In 2007, my brother for no apparent reason demanded complete power of attorney, or he would have nothing to do with the family. My parents refused. He then took the only copy of the trust away from my parents, and tore up the trust (in front of his friends, saying screw the family.) There was no other copy of the trust made, so I tried to get a copy from the attorney and found out he was deceased and his family destroyed all records last year. Questions: was the attorney's family required to keep records for longer than 5 years? Do I have any recourse? Now, my dad is dying, and mom will be left will thousands of dollars in probate costs. Does this constitute elder abuse from my brother, since he deliberately destroyed the trust document? One more question please, my mother is old and vulnerable, and I am afraid my brother might try and get conservatorship when my dad dies, and take advantage of her. I am hoping that she will agree to have another trust done after dad passes away, but what can I do to protect her from her crazy son? Thank you so much in advance
1 Answer from Attorneys
Re: elder abuse/family trust
Technically, your parents did not revoke the Trust, since your brother ripped it up. The best thing is for them to do a restated Trust before your dad passes away. Without knowing the type of trust your parents created (simple, A-B, etc.) and without knowing powers of trustee, only having your mother do a new trust after your father passes leaves open a lot of issues. Hopefully, both parents are still lucid and can redo their estate planning.
An attorney typically retains records for 5 years, unless the retainer agreement provides otherwise.
It is a stretch to claim what your brother did as elder abuse. If he tries to get a conservatorship, you can certainly object and file a competing petition. One way to preempt the conservatorship is if your mother executes an Advanced Medical Directive (for health care decisions) and a Power of Attorney (for financial decisions). If your mother does not want him to be conservator, she can nominate you and state in that nomination that she does not want him to be conservator.
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