Many years ago, your loved one made the wise decision to create an estate plan to allow for the management of his affairs following his incapacity or death. If you now suspect that his health is suffering, it may be time to step in as the successor trustee. Your role as the successor is to oversee and protect the assets of the trust.
Knowing When to Step in
Even if your loved one created an estate plan that contains provisions for his disability or incapacity, it is important to use caution before proceeding. Consider taking the following steps:
- Contact an experienced and knowledgeable attorney for guidance.
- Review the terms of the trust pertaining to disability or incapacity. Some trusts may provide a clear definition of what this term means. For example, the trust may read that a written finding by two licensed physicians is sufficient evidence to declare the creator of the trust incapacitated. At that point, you can step in as successor trustee to manage and control the trust assets.
- If the trust is ambiguous regarding the definition of incapacity, seek out a judicial finding. The court will find that incapacity exists if there is a deficit in one of the following areas: alertness and attention, information processing, thought processes, or the ability to modulate mood. In addition, your loved one’s ability to understand and appreciate his actions must be significantly impaired.
- Consider whether your loved one is of sound enough mind to resign as trustee and allow you to be appointed. Your attorney should be consulted prior to taking this step as it can create problems if there is any dispute as to your loved one’s ability to understand and comprehend the decision to step down as trustee.
When a loved one is incapacitated, his estate plan can provide the tools needed for you to step in and manage the assets effectively. We are here to help you through this process. Check out our client testimonials page today to learn how we have assisted other families through these difficult times.