Q: If my mother has dementia and I am her successor trustee, is the trust now irrevocable? I am also the POA.
Mother has a living will. I am the successor trustee and my sister is the trustee in the event of my death. My mother has left us both a benefit, but we would like to change the percentage of the benefit between us and draft an amendment. My mother is no longer of sound mind so I as her POA have been managing her estate and care. It's unclear if the trust is irrevocable now because she is no longer lucid, or if we have to wait to draft an amendment after her passing. We just want to change the percentage of the value from 50% 50% to a 75% 25% split.
A:
Under California law, whether a trust becomes irrevocable due to incapacity depends on how the trust document is structured. Typically, if the trust is revocable during the grantor's lifetime, it can only become irrevocable upon their death. As the successor trustee and power of attorney (POA) for your mother, you have legal authority to manage her affairs, including her trust, while she lacks capacity due to dementia.
To change the distribution percentages in the trust, you generally have two options: either amend the trust now if it allows for amendments during incapacity, or wait until your mother passes away to modify it through the probate process. Given your role as POA and successor trustee, you should review the trust document carefully to determine if it provides instructions on how amendments can be made in the event of incapacity. If the trust allows for amendments under these circumstances, you can draft and execute an amendment to change the distribution percentages from 50% 50% to 75% 25%.
It's important to ensure that any amendment is drafted according to the legal requirements under California law to be valid. This typically involves preparing a document that clearly states the changes being made, is signed by you as the acting POA and successor trustee, and possibly notarized depending on the trust's specific requirements. If the trust does not allow for amendments during incapacity, then modifying the distribution percentages would likely need to wait until after your mother's passing, where changes could be made through the probate process.
Navigating the complexities of managing a trust during incapacity can be challenging, so it may be beneficial to consult with an attorney experienced in trust and estate matters. They can provide guidance specific to your situation, ensure all legal requirements are met, and help you understand the implications of any decisions made regarding the trust's terms and distribution.
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