In California, how do you officially declare a trustee incompetent (in this case, my 82 yr old father with Alzheimers) so as to invoke the Power of Attorney set forth in the trust. The trust does not specify what is considered incompetent, but simply appoints a "true and lawful attorney-in-fact...on the principal's incapacity".
3 Answers from Attorneys
Competency is presumed until a court makes a finding that a person is substantially (1) unable to resist fraud, duress, menace, or undue influence and/or (2) unable to provide for their personal needs such as food, clothing and shelter. The trust should have a provision for the succession of trustees. Look again. If is does not, then either the elder may resign (more dignified, less cost) or a court finds that the elder needs a conservator and appoints a conservator (expensive, but may be appropriate). Typically a durable power of attorney will be valid once signed or upon a triggering event (such as inability to act). A well drafter durable power of attorney will require either one or two doctors to declare that the elder is unable to manage their finances. If you need further assistance please call me at 916-235-8700x123. As always, this posting is not intended to substitute for legal advice and should not be considered such. Jim.
If your father won't resign as trustee of the trust in favor of whom ever is named next, you will have to petition the Court to remove him and appoint another trustee. You will have to establish that he is not competent to act as the trustee. Each case is different and is dependent on its own facts. You petition will also be impacted by the actual language of the trust document. If you would like assistance with this matter, please do not hesitate to call us.
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Most trusts and many powers of attorney contain language that describes how to establish the level of incapacity required. If the docs in your case don't have such language, you will probably have to arrange for a california medical board-licensed physician perform an evaluation and provide a statement certifying his/her diagnosis. sometimes, people don't wish to submit to an examination, but it can often be performed without the person feeling like a guinea pig.
Obtaining a court order of conservatorship is another approach, though it might not be needed. Depends upon the circumstances. In my humble opinion, you should first consult with an experienced estate planning attorney, who is willing to explore a solution that does not require the cost, delays and humiliation of litigation. These comments are for your information and do not constitute legal advice. If I can help, don't hesitate to call me at 323, 653.3900 ext 115.
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