Full question:
My father developed a trust, naming me and my brother as co-power of attorney. My father died in 2003. My mother has had alzheimers since 2000. My brother has been very secretive about many things involving the trust as has the trustee, at US Bank. I have been summarly excluded from most of the decisions (medical, property etc.) concerning the trust. My brother removed many valuable items from my parents house, including my personal collection of baseball cards, and antiques my mother had collected, without my knowledge. The house was sold and demolished without me being notified. The trustee tells me it is easier to deal with one party, than both. My diploma's and other items were in the house. My main concern is for my 17 year old daughter. My father told me verbally, she would be covered in the trust, but I cannot find her name, she is my parents only blood grandchild. As I read the trust, my brother's family gets his 50%, even on his demise. Upon my demise, his family gets my share also, nothing for my daughter. This is just now catching my attention, as I have been distracted by other matters like my divorce and remarriage, etc.
- Category: Trusts
- Date:
- State: Missouri
Answer:
There is no need to revoke a power of attorney after the death of the principal, as it is no longer effective once its maker dies. Actions taken outside the scope of the power of the authority granted in the document or not in the principal’s best interest may be subject to a
claim of breach of fiduciary duty, and an accounting may be required. Agents appointed under a power of attorney have a duty not to "unjustly enrich" themselves or unscrupulously waste or steal the assets of vulnerable individuals.
Trustees are also "fiduciaries," which means that the trustee must act with the highest degree of good faith in carrying out the trust erms. The trustee must keep his money separate from the trust's; keep detailed records concerning all transactions he engages in on the trust's behalf; not stand to profit by any transaction where the trustee represents the trust's interests; and not make a gift or otherwise transfer any of the trust money, personal property, or real estate to himself unless the trust document explicitly states he can do so.
An oral statement to provide for someone in a trust may be considered a promise to make a gift. Gifts are not enforceable in the same manner that contracts are because they aren't supported by consideration, meaning that they are given without an exchange of something in return. Courts disfavor enforcing a promise to make a gift, and typically require the donee to prove detrimental reliance on the gift in order to enforce the promise. For example, if a person signs a pledge from to donate money to a charity and the charity signs a contract with penalties for cancellation to build a hospital wing based on this promised gift, the gift may be enforced. In order to prove a gift was made, there typically needs to be a completed delivery by the donor and acceptance by the done.
Various remedies may be available if a fiduciary duty was breached. Common actions for an abuse of a power of attorney, among others, include a petition for an accounting, claim of breach of fiduciary duty, theft, conversion, or a fraud charge. I am unclear as to whether you were appointed as a co-trustee. If so, the trust document should specify whether co-trustees may make decisions independently or must agree all all decisions. I suggest you contact a local attorney who can review all the facts and documents involved.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
