Can you explain the difference between conservatorship and power of attorney? FIL has family trust but needs assistance with finances. We were told that a conservatorship was the only option in order to help him financial decisions.
You can be make Trustee of Trust if your FIL is competent and wishes to do that. You need to see an attorney with your questions. I am unaware if being made a conservator gives you the right to manage a Trust. Take all the facts, including your father's competency to appoint or lack thereof (and letters of proof that he is unable to act in his own behalf; at least two by examining doctor and neuro-psych) to the attorney. Then decide what is needed and the best way to go about it. Be very certain whomever accepts a POA or Trustee (if FIL able to confer it) or a guardianship (if this must be done through the court) is willing and able. This is a big thing to take on, a fiduciary duty in which you are legally responsible for every penny in and every penny out. I had a brother able and willing who was well organized and asked me to take on this duty. It was still a very difficult learning curve for me, and a year of difficulty organizing everything with every entity. I wish you the best.
As others had said, an attorney really needs to be involved in this. Why?
It all depends on several aspects:
1) Is FIL diagnosed with dementia, or otherwise "not competent"? Most states do not permit an individual once diagnosed with dementia or other illness that may cause competency issues to "redo legal" docs such as POA or Trusts.
In such a situation a Court would need to hear a petition (filed by someone like you or the daughter) so allow for others to step in (conservatorship or guardianship, depending on how your State law defines this). That includes to be named as Trustees on the Trust (if now NOT named) and/or to name other "successor trustees" (who takes over if something happens to the named Trustee(s)....)
2) Depends on the actual documents in place now. Is the POA a limited one written so that the rights conferred ARE "only" conferred when FIL is deemed "incompetent" (note some state use different terminology re: "competent" or "incompetent"). OR does the POA confer blanked rights to do anything from the time it was executed?
Same issue with the Trust, depends in part on how that is structured? And what is in the Trust (is a house or real estate deeded in the name of the Trust, or are bank accounts and other financial instruments held in the name of the Trust?) What was filed/recorded or not? But the POA may or may not (depending on your State law) permit a POA holder to do anything with the Trust if NOT named as a Trustee now. If named as a successor Trustee, the FIL would likely have to be deceased for the successor to take over OR the FIL would have to be deemed "incompetent" so that the successor rights might be triggered as part of a Court's determination that FIL needs a guardian or conservator to take over (again note: some of there terms and the process is State law dependent).
All to say, you really need to get an "elder care lawyer" involved who is licensed in your State, knows your State laws on these matters. And also best to get an accountant involved too (the elderly care attorney may have a recommendation) because as others had indicated there are a number of things that a Trustee must do regarding the accounting for all expenditures and income and then, there are taxes that have to be filed. This can quickly get complicated.
The fee for any outside help (legal and/or accounting) can and should be paid from the LO's assets/income; NOT you personally (assuming there are assets which I assume there must be given a Trust instrument exists).
Debrjessee, the information on conservatorship is wrong; someone doesn't understand the issues and gave you in accurate information.
Others here have provided much better insight though. There are some good answers and insights. You do NOT need conservatorship to assist with his finances, especially if he's able to understand and work with you to create a good solution.
What I did for my father was gradually take over the bill paying, substituting the time it spent him for more time we could spend together. It relieved him of the burden of trying to write (with a partially amputated hand) as well as the whole process of bill management.
Whether or not the Trustee can become involved depends on the Trust, what activates it (such as death) and other issues. It's a much broader task in scope than being proxy pursuant to a POA or DPOA.
But Conservatorship is a more complicated process. I worked as a court reporter for the local Juvenile Court; we also occasionally covered hearings for assessment of conservatorship. They were emotionally draining for all; sometimes the parties involved were crying in court as they saw their lives being taken over by the court and a to-be-appointed conservator.
Something else of which to be aware: conservators are appointed by the court, and in my experience, typically were attorneys. They charge at what I considered legal rates; then submitted a petition to the court for approval. Some of them went beyond what was necessary, did some remodeling, then were reimbursed by the Court for their expenditures.
I remember being appalled some years later when working for a estate/probate/conservatorship attorney and seeing that a conservator had submitted a bill for close to $50K for 6 months work. That included remodeling some aspects of the individual's home. But the conservator also blocked the individual's friends from visiting. Bad situation all around.
Conservatorship is a whole different legal entity than proxy or Trustee. If you want to learn more, check out some of these resources:
conservatorship | Wex | US Law | LII / Legal Information Institute (cornell.edu) (Cornell Law is a very good source for explanation of legal issues.)
Conservatorship - Explained - The Business Professor, LLC
It really bothers me when I read that some idiot gave someone incorrect information and caused anxiety or stress, or whatever.
FIL would have to be competent enough to understand what he is granting with POA.
If he has already been diagnosed with cognitive issues, then you may need to sue for conservatorship, which is granted by a court, sometimes Surrogate Court.
Current Trustee is FIL. POA was given to his daughter, but she was told she can’t do anything with that POA. She was told that she needed to get a Conservatorship. I don’t understand why she should pay attorney $2,000 when she already has POA. FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
Poa doesn't act on Trust. Only a Trustee can act on a Trust. I was made POA and Trustee of Trust for my brother; that covered everything; but he was competent to be able to do that.
My mom made me co trustee of her trust. It worked well until she was diagnosed with something that all but insured a stroke if left untreated. She didn't want any extra treatment so we went to her attorney who suggested and prepared a document where she resigned her trust making me the trustee. My sister's trusted me and I always told them the finances were an open book. I would email them when we took the RMD, when Mom got a big dividend, and what our financial plans were for the year. The family was always welcome to attend the annual meeting with the financial planner. It worked for us. It was better for mom to resign trusteeship instead of waiting for the stroke and forcing us to go to court to take care of it.
It is so refreshing to hear when family trusts the one sibling who is taking care of the finances of a parent and said sibling is open and honest. As my mother started getting forgetful on paying bills and having difficulty writing out her checks (she still insisted on paying the bills with checks), I stepped up and assisted her. My brother and sister let me to do it because they just didn't want to "get involved". Of the 3 of us, honestly, I was the most competent. It's a curse. Hahaha. They trusted me implicit and I never gave them cause to believe otherwise. If they asked about her finances (which they never did), I would have answered them completely and honestly. I kept meticulous records and as Executrix of her will, everything in her estate was accounted for and properly taken care of. It was sometimes stressful but in the end, me, alone, taking charge was the best possible outcome.
This is something you need to ask an attorney, rather then try to get answers on an online forum. People will post and mean well, however they may not be qualified to answer correctly. Please call an attorney.
Who is the Trustee of the Trust? Helping with financial decisions can occur outside of a conservatorship, which can be costly, and cumbersome, especially if a court appointed conservator is appointed.
Current Trustee is FIL. POA was given to his daughter, but she was told she can’t do anything with that POA. She was told that she needed to get a Conservatorship. I don’t understand why she should pay attorney $2,000 when she already has POA. FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
It all depends on several aspects:
1) Is FIL diagnosed with dementia, or otherwise "not competent"? Most states do not permit an individual once diagnosed with dementia or other illness that may cause competency issues to "redo legal" docs such as POA or Trusts.
In such a situation a Court would need to hear a petition (filed by someone like you or the daughter) so allow for others to step in (conservatorship or guardianship, depending on how your State law defines this). That includes to be named as Trustees on the Trust (if now NOT named) and/or to name other "successor trustees" (who takes over if something happens to the named Trustee(s)....)
2) Depends on the actual documents in place now. Is the POA a limited one written so that the rights conferred ARE "only" conferred when FIL is deemed "incompetent" (note some state use different terminology re: "competent" or "incompetent"). OR does the POA confer blanked rights to do anything from the time it was executed?
Same issue with the Trust, depends in part on how that is structured? And what is in the Trust (is a house or real estate deeded in the name of the Trust, or are bank accounts and other financial instruments held in the name of the Trust?) What was filed/recorded or not? But the POA may or may not (depending on your State law) permit a POA holder to do anything with the Trust if NOT named as a Trustee now. If named as a successor Trustee, the FIL would likely have to be deceased for the successor to take over OR the FIL would have to be deemed "incompetent" so that the successor rights might be triggered as part of a Court's determination that FIL needs a guardian or conservator to take over (again note: some of there terms and the process is State law dependent).
All to say, you really need to get an "elder care lawyer" involved who is licensed in your State, knows your State laws on these matters. And also best to get an accountant involved too (the elderly care attorney may have a recommendation) because as others had indicated there are a number of things that a Trustee must do regarding the accounting for all expenditures and income and then, there are taxes that have to be filed. This can quickly get complicated.
The fee for any outside help (legal and/or accounting) can and should be paid from the LO's assets/income; NOT you personally (assuming there are assets which I assume there must be given a Trust instrument exists).
Others here have provided much better insight though. There are some good answers and insights. You do NOT need conservatorship to assist with his finances, especially if he's able to understand and work with you to create a good solution.
What I did for my father was gradually take over the bill paying, substituting the time it spent him for more time we could spend together. It relieved him of the burden of trying to write (with a partially amputated hand) as well as the whole process of bill management.
Whether or not the Trustee can become involved depends on the Trust, what activates it (such as death) and other issues. It's a much broader task in scope than being proxy pursuant to a POA or DPOA.
But Conservatorship is a more complicated process. I worked as a court reporter for the local Juvenile Court; we also occasionally covered hearings for assessment of conservatorship. They were emotionally draining for all; sometimes the parties involved were crying in court as they saw their lives being taken over by the court and a to-be-appointed conservator.
Something else of which to be aware: conservators are appointed by the court, and in my experience, typically were attorneys. They charge at what I considered legal rates; then submitted a petition to the court for approval. Some of them went beyond what was necessary, did some remodeling, then were reimbursed by the Court for their expenditures.
I remember being appalled some years later when working for a estate/probate/conservatorship attorney and seeing that a conservator had submitted a bill for close to $50K for 6 months work. That included remodeling some aspects of the individual's home. But the conservator also blocked the individual's friends from visiting. Bad situation all around.
Conservatorship is a whole different legal entity than proxy or Trustee. If you want to learn more, check out some of these resources:
conservatorship | Wex | US Law | LII / Legal Information Institute (cornell.edu)
(Cornell Law is a very good source for explanation of legal issues.)
Conservatorship - Explained - The Business Professor, LLC
It really bothers me when I read that some idiot gave someone incorrect information and caused anxiety or stress, or whatever.
If he has already been diagnosed with cognitive issues, then you may need to sue for conservatorship, which is granted by a court, sometimes Surrogate Court.
FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.
See another attorney ASAP (while FIL is still pretty good mentally) to determine whether the existing POA is a durable one.
If you read the POA it specifically names a person.
If you look at the assets, they should be named in the name of the trust, this means FIL doesn't actually own the assets.
If there is not a successor trustee named, FIL will need to have the trust updated by an attorney to add a successor trustee.
POA do NOT give anyone any ability to administer a trust.
This really is not a DIY. Have a consult with a CELA before you do anything else.
FIL is still in pretty good condition mentally, but starting to have those “forgetful days”. He also lives alone and family is concerned he may need more assistance then he realizes.