If I Am a Power of Attorney Does That Include Trustee Over Living Trust Assets?

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Clients or families member often get confused over the term Power of Attorney and how that effects the Trustee of a Living Trust. It is important to understand the difference to be sure the estate plan can work best during a period of disability.

In each case one must understand how broad or limited the powers are that are granted to them in the document.

Powers of Attorney (POA) - Read closely at the power of attorney document to establish exactly what it does and the power it grants. A power of attorney can grant power for healthcare or for property (assets or financial management). It can be very limited in the power it grants or more often include very broad powers. It is also important to establish if it a durable power of attorney or not. Durable means that it does not end with the disability but rather continues until the death of the person that granted the power. If this isn't confusing enough you also need to know the power of attorney grants current immediate authority or is a springing power of attorney, which means the powers it grants are not current but rather spring into existence only at the time of a disability usually not before.

A financial (or property) power of attorney allows the named person (the agent) to make decisions and conduct business affairs on behalf of the person. The agent can sign checks, tax returns, talk to insurance companies, negotiate with others and so on. The idea is to be able to do the the day to day things we normally do as me manage our financial affairs.

Trustee - The Trustee of a Living Trust has the power to conduct all business for the Trust in the same way as an agent under a POA does. It is important to establish if you are the current Trustee or if the Trusteeship only occurs after a disability (like the springing POA). It is critical to establish this issue to know if the powers granted under the trust are currently in existence or will only occur in the future.

The POA grants power over assets not in the trust The Trustee only has power over assets in the Trust. If you are named in both documents then the only difference is to know which job you are performing at any given time.

An attorney can help you clarify the exact situation that the documents planned for and which job, Trustee or POA you are performing.

Additional Resources

American Academy of Estate Planning lawyers at www.aaepa.com

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