You're a trustee. What are you the trustee of? The trust, right? Ok, so what does the trust consist of? One of the first things you should do as a new trustee is create an inventory of the trust assets. Hopefully you can somewhat rely on a written inventory left by the creator of the trust, but don't stop there. You have an obligation to do a little investigative work to find all trust assets.
For many years, it was customary practice to sign a deed at the time the trust was created. The type of deed often used was a Quit Claim deed. It was very common that the client would be instructed to hold the deed with their important documents without recording it with the County Register of Deeds. Now, trust practices have changed somewhat, but more on that in a future post.
Knowing this, new trustees should determine whether there were any deeds transferring real estate to trust, and whether or not those deeds were recorded. Since a lost deed could cause a probate of the real estate, if you've become the trustee due to your loved one's incapacity (not death), you should act quickly. If there is real estate that has not been properly transferred to the trust and the property owner/trust settlor is living, there's still a chance to sign the appropriate documents to complete the transfer to trust. If the trust settlor is living but lacks the capacity to sign a deed, the property owner's agent under a valid general durable power of attorney could have the authority to sign a deed transferring the property to the trust, thereby saving the estate the expense of probate.
If you have questions about any aspect of trust administration, feel free to contact me. You'll find me online at www.lawofficeofjoannehinds, or at www.facebook.com/trustlawyer.
Showing posts with label Incapacity. Show all posts
Showing posts with label Incapacity. Show all posts
Thursday, February 23, 2012
Thursday, January 21, 2010
"I'm Old, I'm Not Stupid!"
While meeting with one of my dearest clients a few months ago, I was surprised by her level of frustration over her family's ideas (perhaps presented as directions) regarding her estate plan.
"I mean, do they think I can't make my own decisions?" she scowled. "I'm old, I'm not stupid! Good night!"
More than a few times this year, I have been met with overzealous children seeking to "solve Mom's (or Dad's) problems" by figuring out what he or she should do in a given situation.
I have even found myself trying to step in and make decisions for my own mother, age 81, when perhaps I should have stepped back instead and given her the space she needed to make her own decisions in her own time.
Some decisions are difficult to make for anyone - do I move or do I stay? Who should take care of my affairs if something should happen to me? Who should receive the farm? the cottage? some other highly treasured family possession? Who will make medical decisions for me if I cannot? This are not decisions I would take lightly or make quickly without thought and discussion - why should we then expect anything different from our parents?
We may have the capacity to make quicker decisions, but our suggestions (or directions) will be based upon our own set of values, coming from our own point of view. The younger brother that you think is irresponsible may be Dad's right hand man - trustworthy, attentive to his needs and available when he is needed. Discouraging Dad's choice based on your opinion of your younger brother may be more self-serving than helpful, and is probably not in your Dad's best interests, despite your well-meaning intentions.
So, let us not, as the younger generation, think that we should step in and make the decision for our loved one, but instead listen, listen and listen even more to try to ascertain what Mom or Dad really wants.
Unless Mom or Dad has lost the capacity to make their own decisions and that loss of capacity has been documented and/or legally determined by a court of law, proceed with caution!
Your parent may be looking for someone to listen to their ideas, not solve all their problems.
"I mean, do they think I can't make my own decisions?" she scowled. "I'm old, I'm not stupid! Good night!"
More than a few times this year, I have been met with overzealous children seeking to "solve Mom's (or Dad's) problems" by figuring out what he or she should do in a given situation.
I have even found myself trying to step in and make decisions for my own mother, age 81, when perhaps I should have stepped back instead and given her the space she needed to make her own decisions in her own time.
Some decisions are difficult to make for anyone - do I move or do I stay? Who should take care of my affairs if something should happen to me? Who should receive the farm? the cottage? some other highly treasured family possession? Who will make medical decisions for me if I cannot? This are not decisions I would take lightly or make quickly without thought and discussion - why should we then expect anything different from our parents?
We may have the capacity to make quicker decisions, but our suggestions (or directions) will be based upon our own set of values, coming from our own point of view. The younger brother that you think is irresponsible may be Dad's right hand man - trustworthy, attentive to his needs and available when he is needed. Discouraging Dad's choice based on your opinion of your younger brother may be more self-serving than helpful, and is probably not in your Dad's best interests, despite your well-meaning intentions.
So, let us not, as the younger generation, think that we should step in and make the decision for our loved one, but instead listen, listen and listen even more to try to ascertain what Mom or Dad really wants.
Unless Mom or Dad has lost the capacity to make their own decisions and that loss of capacity has been documented and/or legally determined by a court of law, proceed with caution!
Your parent may be looking for someone to listen to their ideas, not solve all their problems.
Thursday, September 25, 2008
HIPAA and Trustee Disability
Many living trusts have rules in them about the transfer of power from one trustee (sometimes the person who created the trust), to the next (or successor) trustee. Of course, if a serving trustee dies, its apparent that there is a need for the next successor trustee to take over.
But what happens when a serving trustee begins to suffer from Alzheimer's Disease or another disabling illness? As the next successor trustee, how do you know at what point you should remove the serving trustee and assume the role yourself?
Trust agreements commonly include a definition of disability or incapacity. Often, a determination that an individual is disabled requires a written statement from at least one or more physicians.
The difficulty arises when you, as the next successor trustee, are not authorized under the federal privacy law known as HIPAA (Health Insurance Portability and Accountability Act of 1996) to obtain medical information about the serving trustee sufficient to determine whether they are capable of serving as trustee or not.
To address this issue, some trust agreements now contain a statement indicating that the creator of the trust requests that each successor trustee sign a statement authorizing the release of medical information to a subsequent successor sufficient to determine whether or not they are capable of serving as trustee. One way to do this might be to incorporate such a statement into the successor trustee's acceptance of trust.
But what happens when a serving trustee begins to suffer from Alzheimer's Disease or another disabling illness? As the next successor trustee, how do you know at what point you should remove the serving trustee and assume the role yourself?
Trust agreements commonly include a definition of disability or incapacity. Often, a determination that an individual is disabled requires a written statement from at least one or more physicians.
The difficulty arises when you, as the next successor trustee, are not authorized under the federal privacy law known as HIPAA (Health Insurance Portability and Accountability Act of 1996) to obtain medical information about the serving trustee sufficient to determine whether they are capable of serving as trustee or not.
To address this issue, some trust agreements now contain a statement indicating that the creator of the trust requests that each successor trustee sign a statement authorizing the release of medical information to a subsequent successor sufficient to determine whether or not they are capable of serving as trustee. One way to do this might be to incorporate such a statement into the successor trustee's acceptance of trust.
Subscribe to:
Posts (Atom)