Legal Question in Wills and Trusts in California
Do conservatored mother/parents have rights to amend Trust?
My parents have a revocable trust together and both are alive. My brother pushed them into a conservatorship last summer. My mother is sharper than my father now. Can she sign an amendment to make a change to her revocable trust? It would be keeping with my father's wishes, as both of them signed a notarized document transferring property out of the Trust about 3 months before the conservatorship. My father has been adamant in writing and on video, this transfer is what he wanted to do. It's 6 months later, and the transfer is being questioned and has led to an unfortunate legal mess. Mom would like to formalize her choice further (now a year later), and wouldn't it be helpful if she signed something again, like an amendment to the Trust, furthering her wishes? My concern is, once conservatored, they are deemed incompetent, but she is quite alert. Can't a conservatee make changes to their Trust? Per conservatees' rights, they have the right to change a will. My father has dementia and could sign, but he's less able to interact or communicate as before. I'd be grateful for your assistance. I feel that if the Trust properly represents my parents' intentions, then it should be able to reflect current decisions.
1 Answer from Attorneys
Re: Do conservatored mother/parents have rights to amend Trust?
You are facing one of the most difficult and unpredictible issues in estate planning/probate litigation. Generally, once under a conservatorship there is a presumption that you no longer have legal capacity, but the issue may not have been adjudicated. Therefore, it is not an automatic conclusion that your parents don't have capacity to make changes. Once a conservatorship is established, the smart thing to do is to make any changes to estate plans through a process known as substituted judgment. Before you make any changes, it is also probably advisable that you make consult a geriatric psychatrist.
We frequently deal with these issues; if you need assistance, feel free to give me a call. (310) 787-7577
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