It's pretty broad. The only limit I see is that we can't fund a non-rev trust but we can set up and fund rev trust. We are concerned with a feeble man living in a serious alcoholic household. He is trusting us to respect his wishes to live out the remainder of his life in his condo. Now that he has memory issues, frequents hospital for dehydration due to non nutrition and alcohol, roommate is alcoholic ( slurring and blackouts at night and scolds him about us) and he now has severe osteoporosis of hips and uses walker. Has fallen 5-6 times this year. He has had identity fraud with irs and sallie Mae and we have pulled together timeline.and believe they are involved. We are preparing to file police report of facts and let the investigation emerge on its own. He is very loyal to his roommate and refuses to believe any type of wrong doing. The roommate manages his cash, medicines and mail. Cash does not add up, mail from irs and sallie Mae not received. Does a rev trust protect assets from undue influence? We want to protect him but are afraid of things backfiring. My 2 sisters and I and grand kids are very much present but he does not like confrontation etc. it feels like a tug of war emotionally between them and us for his loyalty. I don't think he sees it that way. I feel like we need to wait until physically immobile or dementia (alchol, un diagnosed) worsens before we can take action but worry we will regret if fall occurs at night and does him serious harm. Even the cpa the two girls hired was a friend with a drinking problem that turned out incompetent, unethical and unprofessional. We hired a new cpa who is refilling amended returns. I feel like we're stuck at this point until something bad occurs. Is the dpoa enough at this point? Do I talk to my dad's dr or will he think we are crazy and sense a power struggle? The roommate is a driver for the local bus for the elderly here in the same town.
In my state (Massachusetts) Section 402 of the Uniform Trust Code requires that the person creating the trust have the mental capacity to do so. But trusts for people who are not competent can be created by a Probate Court, if someone petitions and gets the authority to do so.
The Uniform Trust Code also talks about what it takes for an agent to use a power of attorney document to revoke, amend or distribute property from a revocable trust. In my state (Massachusetts) Section 602(e) requires that the trust and the POA coordinate those powers. But in your scenario, there is no trust document in existence.
The Uniform Trust Code is different in every state, and Probate laws and procedures are also state specific. Most states do not allow a settlor to create a trust and retain a beneficial interest, while at the same time denying creditors the right to reach the trust. Special provisions must be written into the trust document if your father’s money is going to fund it and needs Medicaid coverage now or within a certain period of years.
We can’t give legal advice to you in this online community, but I can suggest that you talk with an elder law attorney who could review the Power of Attorney document, understand your circumstances, and advise you on the costs and risks of Probate Guardianship in your state. Is it going to be necessary to establish a trust if your father is protected under Guardianship? With competent advice from an attorney in your state, you can make the best decisions about how to proceed.
That National Academy of Elder Law Attorneys (naela.org) and Agingcare.com have directories of elder law attorneys
Also, don’t neglect your own physical and mental health as you cope with the insanity and erratic behavior of the people you are trying to help. There are support groups available for family members, such as AlAnon and Alzheimer’s Association. These resources can help you keep perspective in the storm, so you aren’t drawn into the vortex.