Legal Question in Wills and Trusts in Illinois

Re: power of attorney

*IF* your father is in mental condition to do so he (and wants to) he can do a new power of attorney to you revoking the old. This sounds like not the case and your sister might dispute its effect if she questions his competence.

That means your sister holds the trump cards and you have to face it. I question that a guardianship could be brought because most powers say, in effect, I don't want a guardian but if necessary I name the power holder. So you'd have to prove mismanagement on her part.

She may be willing to delegate to you her medical power and I suggest you take it.

She wants to *not* give you the financial control. She doesn't have to. If you are trustees and have his trust now, I frankly think it is a very reasonable proposal on her side to say "look, we can't agree -- let's get a neutral third party in."

She is always accountable to his estate and his trust for mismanagement or misuse of his funds -- but that doesn't necessarily mean not doing it the way you wanted it.

Re: power of attorney

You need to take a copy of your sisters poa to an attorney to see if is a durable power,i.e."one that endures in case of mental incapacity", and you will be able to remove her power if she ever is guilty of self-dealing as far as the expenses paid, from your dad funds.

Re: power of attorney

Your questions has many parts. First the POA. Your sister can not give you the POA even if she wanted to. If you father was competent he could revoke the current POA and write a new one. That appears unlikely. A power of attoney can have co-attorneys [some states prhibit it] but to do so it must be done by your father who is not competent to excute a new power.

Also your sister can not give you the medical power. But if her power of attorney is broad enough she could execute a new medical power for your father naming you as having the power. Or if you are a successor to her she could resign leaving you with the power.

You being "trustee" of his estate is not very clear. You may be an executor and a trustee. Whether your sister wants to turn everything over to a bank you do not have to agree.

The bottom line to all this is ... you should see an attorney witht he documents in hand for his review and discussion with you.

Re: power of attorney

The information provided raises some questions. First, has your father's dementia progressed to the point where he is legally incapacitated. If so, no changes can be made to the POA or trust or will by him. So your sister cannot designate you as attorney-in-fact. So the issue of being a joint attorney-in-fact is not relevant unless your father can change the POA. Second, when you indicate that you and your sister are co-trustees of his "estate", are you referring to a "trust" such as a revokable trust. Such trusts are often placed with a bank or professional trustee to manage assets. If the trust property is substantial, it may be a good idea. If you are a co-trustee, probably both of you would have to agree. If you and your sister are co-executors or personal representatives under a trust established in your father's will, the same situation will apply to the trust which is set up after the death of your father. Therefore, it appears you are dealing with a complex set of facts; you are advised to consult with an attorney who can advise you re legal options.

Re: power of attorney

The easiest solution to your problem is to obtain guardianship over your father through a court petition. A guardianship trumps the powers of attorney and you if appointed guardian can revoke any of the forms. To become guardian you must file a petition and have a medical doctor fill out a report. Your sister will probably contest the matter. An attorney can help you file a guardianship petition.