Legal Question in Wills and Trusts in Massachusetts

Questions about POA

I have DPOA and Guardianship over my father who has alzheimers. I am also a Trustee on a revocable trust he created with 2 pieces of property in Plymouth, MA that are in need of renovations so we can rent them out to help pay for his monthly expenses (He's in assisted living in NH right now).

There is no current mortgage on either of the properties so we are thinking about taking out a small mortgage (50-80K)to renovate both properties and for some tax benefits also. My question is can I do that in his name or should I do it in mine or in the name of the trust? If the trust is the answer, who's credit info is needed, mine or his since we're both trustees??


Asked on 3/16/09, 3:34 pm

2 Answers from Attorneys
Alexandra Golden Golden Law Center

Re: Questions about POA

Since the property is held in trust, there are really two questions here. First, CAN you take out a mortgage in your capacity as Trustee? That question is answered by reading the trust documents. The second question is SHOULD you take out the loan?

The fact that your father has Alzheimers requires a careful reading of the trust to determine what you may do. If you are your father's guardian, there may be significant legal issues which may require the probate court's oversight before you can go forward with any loan.

The answer to the second question is going to depend on financial analysis, which obviously requires looking at your father's current and anticipated financial needs.

I assure you that the bank's attorney is going to be looking at the trustee's powers very closely before allowing any loan to go forward. Thus, I strongly recommend that you meet with an experienced elder law attorney, who can review the documents and advise you about the interplay between the trusteeship and your father's incapacity and advise you what you may or may not do on your own.

Please feel free to contact me if I can be of assistance.

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Answered on 3/16/09, 3:56 pm

Re: Questions about POA

You have to look carefully at your authority under both the Trust and under the DPOA. You may need to get court approval to take a loan for the Trust if the trust does not provide you with authority to do otherwise.

I would suggest you contact an attorney with experience in both elder and/or trust law as well as real estate law.

Please feel free to contact me if you have more questions.

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Answered on 3/16/09, 4:09 pm


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