He cannot sign a resignation of trustee, but I do have his POA. Can I sign this resignation or does his friend have to go back to the attorney how originally prepared the trust?
You might have permission to resign on your dad's behalf, but probably not. If the friend is competent to do so, it would be better to amend the trust.
This answer is for informational purposes only and should not be considered specific legal advice, nor does it constitute an attorney-client relationship.
A trustee cannot delegate fiduciary powers such as this. Most trust agreements have a clause that speaks to incapacity which is the case here...naming who a successor trustee would be.
My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.
Estate Planning Attorney
Is your father the currently acting trustee? Often a trust will name Successors in order and a process for replacing an acting trustee if he is unwilling or unable to fulfill his duties (which includes lack of capacity). However, if the friend is alive and has capacity to amend the trust, then typically the friend would still be the acting trustee for his own property.
THESE COMMENTS ARE NOT LEGAL ADVICE. They are provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. The answer to question does not create an attorney-client relationship or otherwise require further consultation. Mrs. Cook is licensed to practice law throughout the state of California with offices in San Diego County. She is authorized to handle IRS matters throughout the United States, and is also licensed to practice before the United States Tax Court. IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, 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.
Ms. Finch gives good advice. The trust is most likely revocable and the friend should seek to amend the trust. Also, the trust should have provisions discussing incapacity.
You cannot sign for your dad as trustee. To protect your dad, make sure the friend knows your dad is no longer able to act.
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.
Estate Planning Attorney
If your father's POA specifically authorizes you to resign from fiduciary positions,you may be able to do so on his behalf but many POAs do not include this authority. Look next to the language of the trust itself. It may say that a Trustee is removed if incapacitated as determined by his physician, in which case it would only require a letter from your father's Doctor. It's advisable to have an attorney review the provisions of the trust to determine exactly what is required to remove your father as a Trustee and what documentation is required to prove the replacement as Trustee, but it doesn't have to be the attorney who originally drafted the Trust and it may not require an amendment to the trust, if successor trustee provisions are included in the trust document.
Commercial Real Estate Attorney
The trust should have a clause about disability of a trustee and how to determine it; your power of attorney may or may not grant the authority you need and an attorney can tell you with a five-minute review; As advised by others, if the friend is still able, a one-page amendment to the trust, naming another trustee would be the simplest remedy
This comment does not create an attorney-client relationship. The law and its application by the courts is constantly evolving and changing. This discussion is not to be taken as a definitive guide, and should not be relied upon to determine all fact situations. Each set of facts must be examined separately with the current case and statutory law analyzed and applied accordingly.
Is your father the "acting" trustee or a successor trustee? The trust should have language appointing another successor trustee if your father is unable to act. If it doesn't, and if your friend is still alive and competent, amending his or her trust would be the best thing to do. An amendment like that is not expensive.
4 lawyers agree