Legal Question in Wills and Trusts in California
My elderly mother-in-law fell and had to go to the hospital. She was transferred to a rehabilitation center. However, her mental state is not stable; she is confused and incoherent. She currently cannot manage her own affairs. We have a copy of her Living Trust in which her house is funded, but her car is not. My husband is named successor trustee (and is also the main beneficiary). My mother-in-law still owes on her mortgage and has rapidly diminishing savings. We have access to one of her bank accounts, but not all. Her social security checks go to an account we cannot access. She has no other significant assets of which we're aware. We have a California Advance Health Care Directive Including Power of Attorney for Health Care, on which my husband is the Primary Agent and I am the 1st Alternate Agent. However, we do not have a Durable Power of Attorney over her finances. If she remains unable to manage her own affairs, will the Living Trust help us to obtain the legal permission we need to take care of her affairs, including selling her house? We have looked into conservatorships and we will not do that for a variety of reasons. My mother-in-law lives in Southern California and so does her sister. We live in Northern California. What options are available to us?
2 Answers from Attorneys
The trust document will govern what may be done with assets which have been placed in the trust and will govern whether and when the successor trustee will be authorized to assume control of the trust assets, if your mother-in-law is no longer competent to manage her own financial affairs. Also if she is no longer competent, without a durable power of attorney, a conservatorship is probably the only way to obtain authority over assets not previously transferred into the trust.
Your husband can only manage what has been placed in the trust. The trustee has absolutely no authority over anything not in the trust. Without a durable financial power of attorney, there is no option whatsoever except a conservatorship to gain authority over the rest of her financial affairs.
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