Legal Question in Wills and Trusts in Georgia

Re: power of attorney

My response is premised on TWO ASSUMPTIONS:

1. That your niece, now 24 years old, is a competent adult and suffers from no physical or mental disability that would cause her to REQUIRE a legal guardian; and,

2. That the Trust did not REQUIRE an "Administrator" of the Trust. Any testator - like your grandfather - could REQUIRE that a trust be administered for the benefit of a trust beneficiary, EVEN IF the beneficiary suffers no legal disability. If this is the case, then the problem would be in the Trust document itself. This issue will require a careful reading of the Trust.

Assuming Assumption Number 1, above, to be true, (i.e., an adult with no disability), and Assumption Number 2, above, to be true (i.e., there is NO Trust Administrator REQUIRED by the Trust document), THEN, the simplest resolution would be for your niece to simply REVOKE the power of attorney that she signed when she was 18 years old. This would take control of the Trust (that your niece's Grandfather established for her benefit), away from her mother, and vest it with your Niece. If her Mom flat out refuses to return control of the Trust your Niece would probably be required to file suit in the Superior Court of the county which has jurisdiction (most likely the county where her mom resides), for injunctive relief to compel her Mom to return control of the Trust (along with the assets thereof) to the niece. The second issue you raise is in regard to a will on YOUR side of the family. You will will need to establish "Assumption Number One," above, again (that niece is an adult with no need for a legal guardian) and that the Testator's Will does not require that an administrator or Guardian be appointed to control or manage the niece's assets (remember - a testator - like your grandfather - could REQUIRE that a trust be administered for the benefit of a trust beneficiary, EVEN IF the beneficiary suffers no legal disability). The other legal issue you raise has to do with whether your niece's mother pilfered the assets of the Trust for her own benefit. Obviously, if you are successful in wresting control of the Trust away from her by effective revocatioon of the POA, then any pilfering will be in the past. If it was substantial, than it may require a lawsuit to against Mom to establish that mom has breached her fiduciary obligation to prudently manage the trust for her daughter's benefit. Very messy. Most likely, it woul be worthwhile only if evidence of the pilfering is very clear and provable AND that it was substantial enough to justiffy the cost of expensive litigation.

Good luck! .... JIM ZITO

Re: power of attorney

A power of attorney can be revoked at any time, assuming your niece is mentally competent. You should consult with a local attorney about this as well as the issue of the possible misappropriation of your niece's money and the handling of her share of the estate.