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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 38507
Experience:  Retired (mostly)
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My mother is 93 and the onset of dementia began at age 90,

Customer Question

My mother is 93 and the onset of dementia began at age 90, well advanced by the time she was 91. My wife has been her case manager overseeing both health and finances with everything done transparently. She had a revocable trust made 15 years ago but my sister arranged for a new trust giving her, my sister, the entire estate, when my mother reached age 91 already in dementia. We only got an official medical diagnosis recently, but it shows advanced stages so it didn't just arise and her caregivers going back to the time will testify to my mom's mental lack of capacity.
JA: Since laws vary from place to place, what state is this in?
Customer: The question is did the revocable trust become irrevocable when the dementia reduced her mental capacity such that she could not understand what a trust was or that it had changed the earlier trust, etc.? In California law.
JA: Have you talked to a lawyer yet?
Customer: Since the first thing that has arisen is my sister's attempt to get a conservatorship, I was advised to seek one of the subset of the Bar who typically specializes in that. But I'd like to head off the trust contest later if I could get a declaratory judgment as to the irrevocabiity of the first trust.
JA: Anything else you think the lawyer should know?
Customer: My sister is challenging the funds which my mother often gave me over the years, prior to loss of mental capacity, to assist me and my family during very difficult times. She also objects to my wife taking a salary for being both a caregiver 72 hours a week AND acting as mom's case manager over all finances and employer issues. My sister has admitted not needing the estate but wants to get back at me.
Submitted: 8 months ago.
Category: Estate Law
Expert:  Damien Bosco replied 8 months ago.

Hello. My name is***** am an attorney. I am here to help you with your question. Let's begin. Okay?

Customer: replied 8 months ago.
Do you have my question in front of you? I need guidance on how to approach an attorney. Two different issues: first the conservatorship and any strategies you suggest; second, how to anticipate a later trust contest and if the first one can be deemed irrevocable and how to get that done.
Customer: replied 8 months ago.
Also where are you practicing?
Customer: replied 8 months ago.
Are you still online?
Customer: replied 8 months ago.
I see you are a NY attorney. I need someone versed in Calif. law to deal with this.
Expert:  Damien Bosco replied 8 months ago.

Okay. I will opt out.

Expert:  socrateaser replied 8 months ago.

Hello,

Different contributor here. I am a member of the State Bar of California, the U.S. District Court for the Central District of California (LA/OC metro and surrounding counties) and the California and National Association of Realtors. Please permit me to assist.

An inter vivos (living/revocable) trust is a contract between the settlor/trustor ("grantor") and the trustee (typically the grantor him/herself). Incapacity for purposes of irrevocability of the trust is entirely dependent upon the trust terms and conditions. If the trust states that the trust becomes irrevocable when the grantor becomes incapacitated, then it does -- otherwise, it does not. There is no California law that automatically converts a revocable trust into an irrevocable trust upon the incapacity of the grantor.

Most inter vivos trusts are drafted such that the grantor is automatically removed as the trustee of their trust upon either a court determination of incapacity, or upon the independent determination of incapacity of two physicians. This has the practical effect of preventing the grantor from dealing with their trust property, because they're no longer the trustee. However, the trust itself remains revocable for all legal purposes. In order for the trust to become irrevocable prior to the grantor's death, the trust must either provide express conditions for that occurrence, or the grantor must declare the trust irrevocable (which can't be done, if the grantor is legally incapacitated).

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

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