Q: Is there any reason to hesitate in pursuing an incompetency designation?

A: The answer is highly dependent on facts and circumstances so cannot be answered without specific information and discussion.

A: I agree with attorney Garrett that the onset of dementia does not mean that the person suffering from it is instantly or automatically incompetent. The incompetency clause may or may not be appropriately invoked depending on the trustor's actual mental condition (assuming your father is the trustor), not simply because of a diagnosis of any particular dementia. The trust document may define "incompetent" or may provide a procedure for determining it. If you believe your father has reached the point at which the trust's definition (or possibly the legal definition) of "incompetent" applies, then persons with standing to do so (presumably the beneficiaries) may take appropriate steps. I strongly recommend you take any such steps with the assistance of an experienced trust and estates lawyer in your state or the state where the trust is administered. Best wishes.

A: Most trust agreements will either define incompetence or will allow the trustee to rely upon the opinion of physicians. If the trust document has an incompetency clause, it may address the issue of how to determine whether the spouse is incompetent and who makes the determination? Generally, a judicial determination of incompetence should not be required.

However, if the trust's incompetency clause is lacking, then I assume you are asking about a judicial determination of incompetence. Under Texas guardianship statutes, someone is presumed to have capacity or be competent until proven otherwise in a court of law. You have the burden of proving that your father is substantially unable to care for himself or his finances.

You should consult with an attorney for a review of the trust, the incompetency clause, and your father's diagnosis.