Long Beach, CA asked in Family Law, Banking, Elder Law and Probate for California

Q: My sister passed away before she established the trust. Her husband with dementia is in the hospital. Can I do POA ?

My sister said she would give me their house after they died. Unfortunately, she passed away three weeks ago. She never established the the trust. My brother-in-law with dementia (he knows who I am ) also said that I would be the one who inherits the house after he dies. He gave me all his bank info and his house keys before he went to the hospital. How can I file POA ? or how can he establish the trust ? how can he authorize me to act on his behalf and conduct all the activities ? what should I do ? thanks a lot !

1 Lawyer Answer
James L. Arrasmith
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  • Probate Lawyer
  • Sacramento, CA
  • Licensed in California

A: I'm so sorry for your loss and the difficult situation you're in. Here are a few key things to know about power of attorney (POA) and establishing a trust in California under these circumstances:

1. Your brother-in-law would need to have the mental capacity to execute a power of attorney document naming you as his agent. Given his dementia diagnosis, this may not be possible unless he has periods of lucidity. The POA document needs to be notarized or signed by two witnesses.

2. If he doesn't have the capacity to sign a POA, you would likely need to petition the court to be appointed as his conservator in order to handle his affairs and estate. This requires showing the court evidence of his incapacity.

3. Similarly, establishing a trust requires him to have the mental capacity to understand what he is doing and make decisions about his assets. If he lacks this capacity, creating a trust may not be an option at this point.

4. Verbal promises to leave you the house are unfortunately not legally binding without proper estate planning documents in place, like a will or trust.

5. Any existing estate planning documents he has, like a will, trust, or previously executed POA, would take precedence. It's important to locate and review these if they exist.

6. It would be wise to consult with an estate planning attorney who can evaluate the situation in more detail and advise you on the best path forward. They can help determine capacity, draft and execute proper legal documents, and guide you through the conservatorship process if needed.

I know this is a lot to navigate during an already difficult time. Please don't hesitate to seek the professional legal guidance you need. Wishing you all the best as you sort this out and take care of your brother-in-law.

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