My father is incapacitated and my durable power of attorney is about to be enacted. In the DPA, it states granted powers include " To exercise any power I may have to withdraw assets from any trusts ". In limitations on powers granted it states " To exercise any trustees powers under an irrevocable trust of which my agent is a settlor and I am a trustee"
My father is the settlor and trustee of the Revocable Trust. I am the beneficiary and I also have power of attorney. It would seem to be from the language above that I could in fact alter any aspect of the trust once I enact power of attorney because A) it's a revocable trust, NOT an irrevocable trust and B) Because I am not the settlor.
Please be very careful here. Before doing anything, retain an experienced estate planning attorney who can review the documents and determine your rights and duties under the power of attorney. Good luck to you.
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You need to see an attorney. First, you must exercise your power as a fiduciary meaning in your dad's best interest and pursuant to what your reasonably belieVe he would want. You can't jsut take his money while he is still living because you want to.
On the trust, the trust must authorize that the agent have the power to amend or revoke nothwithstanding the poa. Its not automatic.
Also when you say enact I assume you mean your dad executed the poa when he had capacity and you are talking about determination of incapacity as provided in the document.
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Guardianship Law Attorney
I fully agree with these other attorneys. I would also add that, if you are considering withdrawing these assets in order to get your father's assets reduced for purposes of Medicaid eligibility, you could be doing great harm. Please speak with a local attorney for guidance in this matter.
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