Mom and dad set up a trust in 1993. Dad was a farmer and passed in 2001. The trust states that my brother may farm the land at fair market value. Mom is 87 and recently fell and broke her hip. She has been diagnosed with stage 4 dementia. Mom will probably need extra care (assisted living, nursing home type care). Checking moms finances, I realized my brother, who is a trustee, has been only paying about half of fair market value. Mom is the grantor and also a trustee on the trust. Can she still make decisions regarding the trust?
ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:
An incompetent person cannot serve as a Trustee. The trust should have provisions in it spelling out Trustee succession. You should consult an estate planning attorney who is also familiar with elder law. The trust will need to be reviewed to see if your mother can qualify for benefits from such programs as Medicaid.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
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