Years ago, mom setup a trust with property (house, bank and car) as the Trustee. I'm only family member but I live 300 miles away. She does have caring neighbors that help out.
Mom's dementia has gotten to the point that two doctors has issued letters of incapacity, and I am the successor of the Trust. There are two major reasons I need to step in and take over. Mom's continues to drive her car because she is a great driver with perfect driving record. The doctors, the police, the social worker say she cannot drive. The DMV has already revoke her license. When I took her keys, she had a key smith make her a new key. When I disable the car, she has a car repair come by and get the car working.
The other reason is she writing checks to the Junk mail. So far around $2,500 for the last 12 months. She also pay the bill too.
Mom is a very strong will person and very independent. She firmly believes she is doing well because she is able to pay her bills. She does keep the house fairly clean, able to feed herself and walks everyday. Her short term memory is just about gone. She is able to maintain herself by having good habits and routine.
Now the problem. According to the trust, all it takes is two doctors letter for me to take over the trust. When I ask the law firm that wrote the Trust, the lawyer won't issue a new certificate of Trust. His reasoning, I do not want to betray my mom. I should go to another law firm to get new certificate.
The big reason for taking over the Trust, is that car is listed an asset of the Trust. Once I'm the Trustee, I can legal take the car and get mom off the road. I'm now force to convince the local Police I'm the new Trustee with the doctors letters and a copy of the Trust. Without the new certificate of Trust.
What is your feed back on this lawyer?
We have one that lists the obligations of the Trustee, but no consequences if he does not meet the obligations. I know he has not met two of the three obligations and strongly suspect he has not met the third, but have no proof one way or the other.
OP, have the car disabled and write on the inside of the hood with a broad sharpie marker that the car is not to be enabled due to the owner being mentally incapacitated.
It seems on the face of it that the lawyer can't agree that she is incompetent. If so, he is right to say so. There is room for differences of opinion on this point and after all he is her advocate, is he not.
If something has actually happened, take the related documentation to a different lawyer and allow this one to resign. Any difficulty with doing that?
She had gotten herself locked in the car and had to climb out an open window.
She went for a walk and got lost, some local people helped her home.
She has no short term memory. She will ask the same question over and over. Right after you have answered her question.
She had long term family member (include me) and not recognized them.
When going to bed, she explains to me how to operate the hallway light switches every night.
When there was a rat problem, had to explain to her every day not to leave food on the counter. She was always shock to discover rats can climb onto the counter.
There a lot more stories, but she working from habits. When a bill comes in she pay it, along with the junk mail. There is a dirty dish, she cleans it. If she needs to know what day it is, she looks at the clock on the wall. As for her cloths, she wear the same ones over and over, even when dirty.
She a list of phone numbers of people to call.
You can not protect someone from themselves when the law puts stops that could get you in trouble.
It absolutely stinks that you can't just take the vehicle and set mom up with the paratransit or Uber.
You will probably have to turn her over to the state if you don't want to pursue guardianship.
Prayers that she doesn't hurt anyone with her obstinate driving.
I recommend that you find a certified elder law attorney, take the Trust and the titles, deeds and account information to the appointment and find out where things really stand.
It sounds like you have bigger problems then you can imagine, especially since mom has been deemed by 2 doctors to be incompetent and the attorney of record has that information.
www.nelf.org is the place to find a CELA.
Best of luck, someone dropped the ball on this big time.
Thank you Isthisrealyreal
The hardest thing to do is the right thing.
More specifically, the tax issues and obligations change, and became more so with the trump administration tax bill. If your mother has financial assets producing capital gains, you'll need to find a good trust accountant to help you with this aspect, since, if you were to become Trustee, all the accounting issues and tax returns would then be your obligation and you'd need to prepare them for filing.
As for asset, the house, savings account and the car.
1. You wrote:
"...mom setup a trust with property (house, bank and car) as the Trustee". I'm assuming you mean that the house, bank and car are covered by the trust and are included as assets of the trust? If so, the house should have been deeded from your mother as sole owner (I'm assuming this) to your mother as Settlor and Trustee of the Trust.
How is the property titled now?
Her bank accounts should have been retitled similarly. As to the car, when I tried to retitle my sister's car in the name of the Trust, the Sec'y of State's drivers' department refused to do so, stating that they can't title a vehicle as being owned by a trust. It must be owned by a person even if it is a trust asset. That makes sense, so I had to retitle to my own name.
2. The car could be included as a trust asset w/o retitling if it's specifically named in a Inventory (which our attorney prepared) or as an asset somewhere in the Trust.
3. I'm wondering about the Certificate of Trust. The ones I've seen affirm the existence of the Trust, its date, etc., and identify the Settlor, Trustee and successors in the event of death. If I recall correctly, it was recorded with the Register of Deeds, evidencing the existence via a public record.
4. You wrote:
"When I ask the law firm that wrote the Trust, the lawyer won't issue a new certificate of Trust. His reasoning, I do not want to betray my mom. I should go to another law firm to get new certificate."
Clearly this attorney doesn't want to get involved with your plans. I wouldn't either under the circumstances. In fact, I doubt if any attorney would issue a new Certificate under the conditions you describe. He/she would NEED to evaluate the Trust before preparing a new Certificate. I'm also not sure that a new Certificate could accomplish what you want, which seems to be to get the vehicle retitled in your name.
5. If your primary goal is to prohibit your mother from driving, you don't need to consider amendments to the Trust. The police can do this w/o the documentation you think should be supplied.
Has your mother had accidents recently? Is she actually not a safe driver?
6. "The other reason is she writing checks to the Junk mail. " I can understand this frustration. There are many threads here addressing similar issues and the frustration of adult children b/c of this practice.
However, if you want control of her financial assets, you'll need to approach it a different way. How are her bank accounts titled? As her as Trustee, with you listed as Successor Trustee?
Have you discussed with the banks what THEY require to allow you to have access to her financial assets? I'm sure they would require copies of the doctor's certs, as well as the trust, which in my experience would be reviewed by a good bank's trust department.
This is what I would do:
1. Ask a policeman how to address your mother's driving. Raise the issue of accidents and the doctor's certifications, and ask how to proceed. More than likely, the police could contact the state department and they'll schedule a driving test. That may address that issue and you don't need to take over management of the trust.
2. As to donations to junk solicitors, there are numerous threads here that might offer some insights:
https://www.agingcare.com/search?term=junk+mail+solicitors+and+donations
This is NOT an easy issue to address, and taking control of your mother's assets to manage legitimate bills could more than likely cause friction between the two of you. Read the other threads here to see if you can find some good ideas.
Out of space; see next message.
>How is the property titled now?
It is listed under “Schedule A Trust Property”
Her Bank accounts
The House
The car
All these items are in her name, not in the Trust name.
The Trust has been registered
I have full access to her bank accounts
> The police can do this w/o the documentation you think should be supplied.
The social worker wasn’t sure, so I’m not sure either. I will be talking to the police on Monday. Mom’s driving history is good, but mom’s driver license has been revoked by the DMV. The police have already talked to her. She refuses to believe it. Because she is one of the best drivers on the road at age 87. Since her driver license “expires” in 2023, she feels no driving test is need.
If the police can catch her driving, they will take action, or she is in an accident. If she injuries someone, I can see mom losing everything in the Trust in a lawsuit.
> Clearly this attorney doesn't want to get involved with your plans.
If mom gets into accident, he will be involved.
As for the Junk mail
She believes it one or two checks. Then promises to stop writing checks. Due to her short-term memory being gone, she continues writing checks and makes promises to stop writing them. When I show her the bank statements, she does not believe it.
> This is NOT an easy issue to address, and taking control of your mother's assets to manage legitimate bills could more than likely cause friction between the two of you. Read the other threads here to see if you can find some good ideas.
Thanks for the link. I will read it.
The social worker has already informed me this will be hard time on both my mom and I. Part of my actions is the social finally open my eyes to how bad the situation is. The social worker did reach out to the police, and the police contacted me. They could not offer much in the way help. They recommend get the car removed by the Trust.
Our opinions of the lawyer isn't relevant. The courts are VERY loathe to take from a citizen the rights of their own body, mind, monies. You can imagine why. Once you are Trustee of this Trust you will be able to sell the gold out of your mother's teeth, as my brother's lawyer warned him when my brother, diagnosed with early Lewy's Dementia but not yet demented, decided to make ME the Trustee of his Trust. This meant that my brother made me a trustee knowing I could sell his properties, transfer his money wherever I liked, and do as I pleased with all of his assets.
I don't know what other ways you can make your mother safe from driving. But other than your mother's stubborness, I don't see the evidence she is completely incompetent.
I wish you the best, and your mother as well.
Administration of My Trust During My Incapacity
Section 4.01 Definition of Incapacity
I will be considered incapacitated during any time when I an unable to effectively manage my property or financial affairs because of age, illness, mental disorder dependence on prescription or other substance, or any other causes.
Section 4.02 Determination of My Incapacity
For purpose of this instrument, I am incapacitated if I am determine to be so under any of the followings.
(a) Determination by Physicians
I will considered incapacitated if two licensed physicians have determine my then-existing circumstance fall within the definition of capacity as provide in Section 4.01
(b) Court Determination
(c) Detention, Disappearance, or Absence
There is a lot more....I hope that answers your questions.
I do have the doctor's letter, and the law firm has accepted and registered these letters.
To the bigger question, can I legal take the car away from mom?
As I wrote in my own post, you don't need to change the Trust to "take the car away".
There are other ways to approach this situation.
And heed Alva's advice; she's been through Trust management and knows how challenging it can be.
If you want proof of the difficulty of trust management, download the IRS Trust 1041 tax booklet and return forms, then try to make sense of them.
Get another trust and estate attorney and have them advise you.