Legal Question in Wills and Trusts in Virginia

Re: Durable PoA, Trust, and Will of my Grandmother

I'm not clear on your question. Your uncle "has" a durable Power of Attorney FROM your grandmother? Or he has one for himself that appoints someone else to act for HIM?

Theoretically, a durable PoA only takes effect when the person granting it is mentally or physically impaired. However, due to sloppy and thoughtless drafting by most attorneys, most PoA's do not contain any condition or restriction as to WHEN they take effect. It matters what it actually says.

If your grandmother executed a durable PoA and appoitned your uncle as "attorney-in-fact" then -- SUBJECT TO the details and terms of the PoA (read it very carefully), your grandmother has already given her consent to your uncle to manage her property for her... under the conditions (if any) specified in the PoA.

If not, then no one has the power to put property into a trust taht does not belong to them. If he did not act undre a valid PoA from your grandmother, then the attempt to put her property into a trust would be void and the entire trust might also be void (but who cares if the property is not in the trust).

Furthermore, if your uncle is the trustee over the property, he has a very strong legal obligation (a fiduciary duty) to manage the property for the benefit of the beneficiaries of the trust, which is most likely your grandmother (but not necessarily). I'm not sure, but if your uncle used the PoA to put your grandmother's property into a trust NOT for her benefit, then it is quite possible he violated his fiduciary duty to your grandmother by mis-using the PoA, by NOT using it for her benefit on her behalf.

Your uncle's fiduciary duty in favor of your grandmother would require him to use the property or money in your grandmother's best interests. Would that include bringing her home out of the rehab center? That is a difficult question that depends on the situation. But your uncle must sincerely do what HE believes is in the best interest of your grandmother NOT in anyone else's interest. This is legally enforceable in court.

I don't think you have a say in what happens to her on account of your own rights. But your grandmother may have a lot to say, although this may require going to court.