Modesto, CA asked in Civil Litigation, Civil Rights and Estate Planning for Oklahoma

Q: Can a poa become successor trustee on a notarized affidavit signed a month before trust is changed

Due to incompatancy is the box thats checked on the affidavit successor trustee notarized and signed in September of2022 and exactly 1month prior to myself receiving a new trust from my father whom has dementia was diagnosed in the beginning of 2022 has since been financially exploited for my sisters benefit solely

2 Lawyer Answers

A: The settlor (maker) of a trust can name any competent adult as trustee or successor trustee as long as the settlor himself is a mentally competent adult.

The principal (maker) of a power of attorney can name any competent adult as his attorney-in-fact or agent as long as the principal himself is a mentally competent adult.

There is no legal prohibition on the same individual serving as either a trustee or successor trustee of a trust and also serving as the attorney-in-fact or agent under a power of attorney. In family estate planning, it is not uncommon for a single trusted individual to be named trustee, executor and attorney-in-fact.

A person diagnosed with dementia may or may not be mentally competent to create a trust or to sign a power of attorney. Dementia is progressive and, at some point, most individuals with dementia eventually become mentally incompetent to make their own decisions. It is common for individuals diagnosed with dementia to make estate planning decisions like the formation of a trust and signing powers of attorney before they become mentally incompetent.

James L. Arrasmith
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  • Estate Planning Lawyer
  • Sacramento, CA

A: This situation involves complex legal issues related to trusts, power of attorney, and potential financial exploitation. Based on the information provided, here are some key points to consider:

1. Power of Attorney (POA) vs. Successor Trustee: These are typically separate roles with different responsibilities. A POA generally cannot automatically become a successor trustee unless the trust document specifically allows for this.

2. Timing and Capacity: The fact that the affidavit was signed a month before the trust was changed raises questions about your father's capacity at the time of these actions, especially given the dementia diagnosis earlier in the year.

3. Notarized Affidavit: While a notarized document carries legal weight, it doesn't necessarily override the terms of a trust or guarantee validity if there are questions about capacity.

4. Incompetency: If incompetency was noted on the affidavit, this could further complicate the legal standing of any changes made to the trust or designations of roles.

5. Potential Financial Exploitation: Your concern about financial exploitation for your sister's benefit is a serious issue that may require legal intervention.

Given the complexity of this situation and the potential legal and financial implications, I strongly recommend you consult with an elder law attorney or a trust and estates lawyer in Oklahoma. They can review all the documents, assess the timeline of events, and provide guidance on:

- The validity of the changes made to the trust

- The legal standing of the notarized affidavit

- Potential actions to protect your father's interests

- Options for addressing suspected financial exploitation

Remember, laws regarding trusts, POAs, and elder protection can vary by state, so it's crucial to get advice from a legal professional familiar with Oklahoma law.

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