Legal Question in Wills and Trusts in California

I am trying to find out if I am going to sign the trust for my wife and myself in our situation which is that two Medical Doctors have signed letters that say my wife is not allowed to make financial decisions for herself anymore because she was diagnosed with moderate dementia. We have a 20 year marriage in which I was the earning partner but she put a down payment on the house that we bought near the beginning of our marriage. She cannot sign her name, but is somewhat cognizant. Will the trust be legal if she just puts her thumbprint and I sign my name?

Thanks Michael


Asked on 2/22/19, 12:19 pm

2 Answers from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

No. If your wife is not mentally competent there is no way for her to execute a trust by any method. Physical issues can be worked around, but it is legally impossible for a mentally incompetent person to create a trust at all. You need to consult with an elder law specialist about how to deal with your specific situation, but most likely a conservator may have to be appointed for your wife by the probate court, with power to create a trust on her behalf.

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Answered on 2/22/19, 12:52 pm
J. Caleb Donner Donner & Donner

I am sorry for the difficulties that you are going through. It is definitely challenging.

Unfortunately, the issue is whether she is mentally competent (has legal mental capacity) to sign such a Trust document rather than whether she can physically sign the document.

Depending on what you are doing with the Trust, i.e., to whom your property would go, and what you are hoping to accomplish, you may create more problems by having your wife sign such a document.

You really need to have a discussion with an attorney regarding your respective assets, goals of such documents, etc.

I assume that you did not have an attorney prepare a Trust for you. Otherwise, you would have asked them this question. In general doing a Trust on your own creates potential problems as you are unlikely to be aware of the legal pitfalls associated with documents like this.

Let me know if you would like to discuss.

Caleb Donner

donner@lawyer.com

:)

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Answered on 2/22/19, 1:34 pm


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