If there is a revocable trust and will prepared for a parent and we are the POA on all matters, do we still need to get guardianship?

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momsthing Asked February 15, 2024

If there is a revocable trust and will prepared for a parent and we are the POA on all matters, do we still need to get guardianship?

My MIL has a revocable trust and will made up after her diagnosis with ALZ three years ago. In it states that as her POA's we have the right to make the decisions for her in all matters health, financial etc. So, would we still need to get a gaurdianship in order to place her in ASL? We had this all done by a Elder law attorney.

Alzheimer's & Dementia Guardianship Power of Attorney (POA) Will

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score 1 · Answer 1

A POA does not have ANYTHING to do with a Trust and cannot manage a Trust.
Only the Trustee can manage the Trust. If you are successor Trustee and the Trustor/Trustee who created the Trust is incompetent then you are the Trustee but will require an attorney. A GOOD POA written by an ATTORNEY will serve as your ability to do all other things for things not held in the trust, accounts and etc. But many banks don't accept online POAs witnessed only by a Notary.

You currently need a Trust and Estate Attorney to answer your questions about what you can and can't do as regards the Trust. This person can answer questions about your POA as well.

I am assuming that MIL is now judged incompetent under the law?

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score 0 · Answer 2

You are fine, no need to secure guardianship, if you have the DPOA and she is deemed incompetent.

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Not true for the Trust. A POA has nothing to do with a Trust. Only Trustee can manage a Trust. For my brother I had to be both his Trustee of Trust and his POA. Separate documents for each. When both Trust and POA are needed it can get very complicated and often a guardian can't even mess with a Trust. With a Trust it is not the person who owns stuff but the TRUST itself. It all gets very complicated. Not DIY for sure.

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score 0 · Answer 3

If you have POA you do not need to get Guardianship.

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score 1 · Answer 4

No, you would not need to get guardianship if your MIL wrapped things up good and tight with the POA and the Trust. It sounds like she did.

You do not need guardianship to place her. You can do that with a POA if she's declared incapacitated and unable to make decisions for herself.

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score 2 · Answer 5

Momsthing, welcome

Is it a durable POA, that took effect immediately? Or does it state she needs to be declared incompetent?

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Took effect immediately.

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If there is a revocable trust and will prepared for a parent and we are the POA on all matters, do we still need to get guardianship?

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