Q: How can I activate a Living Trust as Successor Trustee while the Settlor is still living, but has dementia?
I need advice and assistance in how to declare the Settlor incapacitated which the Trust allows for. Relatives are trying to remove him from his home, acting only in his name, and I need to have legal authority to provide for the Settlor's care and welfare under the Trust before they act.
I am a successor Trustee as well as a beneficiary of the Settlor. The relatives have no standing in the Settlor's Living Trust or Will.
A: The first step is to review the terms of the trust to determine its instructions regarding incapacity and appointment of a successor trustee. The trust will also provide terms about the authority of the successor trustee. You should seek assistance from an attorney who works in trust administration to review your options.
While your parent (or other Settlor) is still alive, the document that states who is authorized to make his health care decisions is called a Health Care Directive. The document that states who has control over his finances is called a Durable Power of Attorney. Assuming he signed both of those documents while he still had mental capacity to understand what he was doing, then those documents will say exactly what things the agent can and cannot do.
But, the Trust should also have a section on who controls the assets in the Trust during the Settlor's incapacity. So, both the Durable Power of Attorney and the Trust address who controls his assets and must using his money FOR HIS BENEFIT. If agents are given authority to access to the settlor's assets and then spends it on trips to Tahiti for themselves, they can be sued for breach of their duty to him. Bottom line: the Durable Power of Attorney will say who controls assets outside of the trust and the Trust document will say who controls the assets in the trust.
Once people lose their mental capacity, they can no longer sign any legal document that is enforceable. The reason is that the people don't fully understand what they are signing. So, the settlor cannot amend his documents to change the agents. There are two ways to do that: (1) the documents themselves should say when and how agents can be removed; and/or (2) you could go to court and petition to become the person's conservator. In the latter case, you need to find a lawyer who handles conservatorships because it is a specialty area. Best wishes!
A: You need to read the trust agreement. Look for the definition of incapacity. Upon the incapacity of the settlor-trustee, if you are named as the next trustee, prove the settlor is incapacitated using the definition of incapacity. Frequently incapacity must be proven by a sworn affidavit of at least two doctors, but sometimes one, and sometimes a group of friends and family. If by affidavit, the doctor will state his name and address and area of specialty. He will also state that he is his patient’s doctor and that he’s unrelated to his patient. He will then express his medical opinion whether his patient meets the definition of incapacity as stated in the trust agreement. He will then sign it under penalty of perjury. You will then attach it to the trust agreement. You will then begin going around to all the banks showing them your documents and ask that you become the new trustee on the account. For real estate, the affidavit is recorded. You really should use an estate planning attorney to help you. It will make your job so much easier and there will be nuances that you should be aware of. Call me if you need help.
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