Here’s a transcript of a (generic) call that comes in regularly:
“My dad has had a Trust for years. He’s the trustee. He’s now 90 (or 80, or 70). He’s beginning to slip. No, not on the driveway. Mentally. He’s really forgetful. He leaves money around. He’s paid several bills twice recently, but forgot to make the house payment last month. He even forgot my daughter’s name – and she’s his favorite grandchild. What can I do?”
Depending on the language of the Trust, there are several possibilities: First, Dad may still be competent, if increasingly forgetful. If so, he can resign as Trustee, perhaps in favor of a named Successor Trustee, such as one of his children or a trusted friend. If the Trust remains revocable, he can appoint additional Successor Trustees.
If Dad has truly lost capacity, there are several ways to remove him as a trustee: The Trust may, and should, outline the mechanism for his removal, such as by requiring the certification of his disability by two disinterested physicians. Some trusts require only one doctor’s letter, or even the opinion of a successor Trustee. (The latter seems too easy – convenient for the Successor Trustee but most precarious for the Trustor/Trustee.) If the Trust does not provide a removal method, a proposed Successor Trustee could apply to the Probate Court for a finding that Dad lacks capacity and for orders removing him as Trustee and appointing a Successor Trustee. (Caution: If a Court procedure fails, and Dad is not removed, he may be resentful of the applicant and, having be adjudicated to retain capacity, change his Trust and disinherit whoever tried to take over control of his assets.)
No two situations are identical. The (generic) advice for Dad’s concerned child may well be to tread lightly, and to discuss the situation with Dad as delicately and diplomatically as possible. You act at your peril and risk his ire if you do go to Court without Dad’s blessing.
What about advice to Dad, himself? If he’s getting tired or forgetful, but still has his faculties, and if he has a proposed Successor whom he trusts, he may consider resigning before the true need arises. Dad may wish to discuss this possibility with both his physician and his own attorney. After all, it’s still his assets, in his Trust.
Jerry Kessler practices law in Santa Clarita. He may be reached at 661-255-1001.