Legal Question in Wills and Trusts in New Mexico
My parents have a living trust. My dad had a durable power of attorney for his brother as his brother is incapcitated. My dad recently passed away and my mom is being told that my dad's brother's POA is not subject to the living trust and that in order to take over medical and financial affairs for my dad's brother, she will have to get a court order. Is this true? My dad was always under the impression that my mom could do anything he could do through the living trust.
1 Answer from Attorneys
This is correct. If the POA did not specifically appoint the living trust as an attorney-in-fact, then the POA expired by law at the death of your father who was the sole attorney-in-fact. It will thus be necessary to establish a guardian and conservatorship through the courts to replace the deceased brother, due to his incapacity. You may email us for further information.
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