
Property Managment
A conservativeship can be appointed by a court to manage the property of an incapacitated individual. A revocable trust can also establish a successor trustee who manages property after incapacity is determined (as defined in the trust). Finally, a durable power of attorney gives a designated individual the right to manage the property of incapacitated person. The presumption is that power of attorney is durable, meaning it extends beyond the capacity of the property owner, but only as long as the property owner is alive.
In re Estate of Kurrelmeyer
895 A.2d 207 (Vt. 2006).
Facts
Louis Kurrelmeyer executed a durable power of attorney where his wife Martina and daughter Nancy both had the power of attorney. This was executed while he was competent. With this power of attorney, Martina and Nancy had broad discretion in how the finances of Louis were to be completed. This included the creation of a trust, management of trusts, and management of real property.
Louis eventually became incompetent. Once he was incompetent, Martina set up a trust where she and Nancy would be co-trustees. Real property owned by Louis was used as the principal of the trust. Once Louis died, the trust gave Martina broad power over how the property was to be used.
Louis died and his will gave the real property to Martina as a life estate and the children had the remainder.
As such, the children contested the creation of the trust, arguing this gave Martina great power without any authority to do so.
Analysis
Martina did have the authority to create the trust. Looking at the document granting power of attorney, there was broad authority to create trusts, manage the will, and manage real estate. Consequently, it would have been expected that real estate and the will could be altered.
The next question is whether there was a breach of a fiduciary duty. Martina argued the co-trustee system where all the trustees had to be in agreement before a transfer was made, protected her against self-interest. The facts were insufficient to make the determination here, but upon remand the determination was made that the transfer was valid.