Can she appoint me as power of attorney to do all of this trust?

Full question:

I am my mother's caretaker. My dad set up a Living Trust, which was amended upon his death, but is now in question by my mom. She does not have a copy, nor does she know what attorney handled this. She does know my estranged brother-in-law headed the update process, and suspects it was not done as she wanted it done. She now wants to revoke it, and sign all assets over to me. I would prefer to amend it, or revoke it and establish an amendment, naming my sister and myself as co-executrix's. The attorney who handled the initial trust document won't speak to me, and mom wants me to handle the whole thing. Can she appoint me as power of attorney to do all of this, or where the heck do we start? Mom does not travel, but I can have witnesses and/or notary service come to the house IF I can find a place to start. Mom is 88 and wants this done as soon as possible. I just don't know where to begin.

• Category: Trusts
• Date: 04/07/2025
• State: California

Answer:

We are assuming the purpose behind the change is to name you and your sister as trustees. If you revoke the trust, it will be necessary to create a new trust appointing the two of you as trustees. The answer will also depend on whether it was a revocable trust. A trust may not be modified or revoked by an attorney in fact under a power of attorney unless it is expressly permitted by the trust instrument. The answer for terminating the trust may require a petition to the court.

Please see the following CA statute:

15407. (a) A trust terminates when any of the following occurs:
(1) The term of the trust expires.
(2) The trust purpose is fulfilled.
(3) The trust purpose becomes unlawful.
(4) The trust purpose becomes impossible to fulfill.
(5) The trust is revoked.
(b) On termination of the trust, the trustee continues to have the
powers reasonably necessary under the circumstances to wind up the
affairs of the trust.

 

Except as provided in subdivision (b), if all
beneficiaries of an irrevocable trust consent, they may compel
modification or termination of the trust upon petition to the court.
(b) If the continuance of the trust is necessary to carry out a
material purpose of the trust, the trust cannot be modified or
terminated unless the court, in its discretion, determines that the
reason for doing so under the circumstances outweighs the interest in
accomplishing a material purpose of the trust. Under this section
the court does not have discretion to permit termination of a trust
that is subject to a valid restraint on transfer of the beneficiary's
interest.

If the settlor and all beneficiaries of a trust consent,
they may compel the modification or termination of the trust.
(b) If any beneficiary does not consent to the modification or
termination of the trust, upon petition to the court, the other
beneficiaries, with the consent of the settlor, may compel a
modification or a partial termination of the trust if the interests
of the beneficiaries who do not consent are not substantially
impaired.
(c) If the trust provides for the disposition of principal to a
class of persons described only as "heirs" or "next of kin" of the
settlor, or using other words that describe the class of all persons
who would take under the rules of intestacy, the court may limit the
class of beneficiaries whose consent is needed to compel the
modification or termination of the trust to the beneficiaries who are
reasonably likely to take under the circumstances.

15402. Unless the trust instrument provides otherwise, if a trust
is revocable by the settlor, the settlor may modify the trust by the
procedure for revocation.