Q: Property management: Where there's a Living Trust, should a durable power of attorney be used in lieu of the Trust?
One of our newer property managers is setting up a property and owners, I believe, incorrectly. The property is in the name of a Living Trust (husband & wife), neither the Deed or Trust instrument is present for me to confirm its instructions. The only thing utilized by the property manager thus far is a Durable Power of Attorney, that gives the stepson of the husband the authority to conduct business in the event that the wife is incapacitated or unavailable should the husband be incapacitated. There is a letter from a doctor (looks suspicious) that is not notarized that claims the husband is incapacitated and cannot make decisions. Having managed two Trusts before, it has been my experience that the Trust instrument states the conditions that must be met for a DPA or a doctor's letter... I don't know where to look for codes, statutes, laws...that govern the aforementioned. The last thing I want is for my company to get in the middle of an elder abuse situation.
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A:
In California, when dealing with property management involving a Living Trust, it's important to understand the roles and limitations of a Durable Power of Attorney (DPA). Typically, a DPA is utilized for personal affairs and may not always extend to managing trust assets unless explicitly stated in the trust document.
The Trust instrument, which outlines the terms and conditions of the trust, generally governs the management of trust properties. If a trustee is incapacitated, the trust document usually specifies the succession process or conditions under which a new trustee or co-trustee can take over management.
Regarding the doctor's letter claiming incapacitation, this requires careful scrutiny. Such a declaration should ideally be a formal, notarized document, especially when it's used to enact significant legal powers like activating a DPA or changing trust management.
It's advisable to obtain and review both the Deed and the Trust instrument to fully understand the specific provisions and instructions regarding management and succession. This will help ensure that the property management is aligned with the legal requirements of the trust and the state law.
Lastly, if there are concerns about potential elder abuse or the legitimacy of documents, it might be prudent to seek legal counsel or involve appropriate authorities to ensure the protection of the involved parties. This helps in not only aligning with legal compliance but also in safeguarding the interests and rights of the vulnerable individuals.
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