Legal Question in Wills and Trusts in Arizona

person with mild dementia sets up RLTrust

A person with mild dementia created a rev. living trust. having had neuropsycological evaluations deeming him to have capacity until this year the trust was created in 2002. the trust became irrevokable sucessor trustee was put in place in 2006. and then the granddaughter lied to him geting him to revoke his Mpoa and poa however the Dr. declared that it was invalaid as he no longer has capacity. and then she filed for emergency petition for gaurdian/conservitor only trying to ursurp the trust. I guess my question is can a person with dementia create a trust while having evaluatons that state capacity and then have it be busted just because of the dementia diagnosis?


Asked on 12/02/06, 3:26 am

2 Answers from Attorneys

James Jenkins Jenkins Law Center PLC

Re: person with mild dementia sets up RLTrust

You need an attorney to review the trust and the pending petition, which sounds like it needs to be protested. Once a person lacks testamentary capacity, he cannot execute wills, trusts or powers of attorney, and a guardian is not supposed to undo an existing estate plan. There will be a hearing on the conservatorship, and her application needs to be objected to. See an attorney at once. If this involves Arizona, we handle these types of cases and you can have a free, no obligation consultation by arranging it at 480.835.1500.

Best regards.

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Answered on 12/03/06, 11:13 am
Donald Scher Donald T. Scher & Associates, P.C.

Re: person with mild dementia sets up RLTrust

Mental Capacity to make a will or a trust is common, and possible even though that person may not have the capacity to make considered decisions about medical treatment or business affairs. You state that medical evaluation was done and he was deemed to have the capacity to make a trust, so it should be valid. If all the assets were conveyed to the trust, then the Trustee, and any successor trustee, has control of those assets. A person with the grantor's power of attorney has no authority over the trust assets or estate. Once the grantor was determined to have any legal capacity, his actions are of no force and effect. Any person appointed Guardian, will have the authority to make medical, care and all living decisions for the Ward, but does not have any right to spend money. A conservator only has rights and duties with respect to money and assets in the Ward's possession, not to the assets in the trust.

You should take action to protect this person, it sounds like the granddaughter is trying to take over, and perhaps, exploit the situation.

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Answered on 12/03/06, 1:10 pm


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