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Does my Durable Power of Attorney Allow me to Change Details of A Revocable Trust?

San Mateo, CA |

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 Advise

Attorney Answers 3


  1. 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.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.


  2. 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.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.


  3. 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.

    Please note: The above is for general information purposes only. It is not intended to establish and does not establish any attorney-client relationship.

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