Conservator

Can a Trust Be Amended?

A son has contacted an elder law estate planning attorney now that mom is in a nursing home and he’s unsure about many of the planning issues, as reported by the Daily Republic. The article, “Amending trust easier if parents can make informed decision,” describes the family’s situation, but what it really boils down to is, can a trust be amended?

Can a trust be amended?
Almost all revocable living trusts contain provisions allowing them to be amended.

There is one point to consider from the start. If the son been involved in the planning from the start, in a family meeting with the attorney and discussions with his parents, he might have less uncertainty about the details of the plan.

As for the details: the parents are in their 90s, with some savings, a few annuities, a CD and a checking account. They also have five acres of land, which has their home and a duplex on it and 12 additional acres, with a rental property on it. Everything they own has been placed in a family trust. The son wants to be able to pay her bills and was told that he needs to have a power of attorney and to be named trustee to their trust.

He reports that his parents agree with this idea, but he has a number of concerns. If they are sued, will he be personally liable? Would the power of attorney give him the ability to handle their finances and the real estate in the trust?

If his parents have a revocable or living trust, there are provisions that allow one or more persons to become the successor trustees, in the event that the parent becomes incapacitated or dies.

What happens when they die, as they each leave each other their share of the assets? The son would become the trustee, when the last parent passes.

Usually the power of attorney is created when the trust is created, so that someone has the ability to take control of finances for the person. If the trust has any of these provisions, the son may already be legally positioned to act on his parents’ behalf. The trust should also show whether the successor trustee would be empowered to sell the real estate.

Trusts can be drafted in any way the client wants it written, and the successor trustee receives only the powers that are given in the document.

As for the liability, the trustee is not liable to a buyer during the sale of a property. There are exceptions, so he would need to speak with an estate planning attorney to help with the sale.

Assuming the trust does not name the son as a successor trustee and also does not give the son power of attorney, the bigger question is are the parents mentally competent to make important decisions about these documents?

Given the age of these parents, an attorney will be concerned, rightfully so, about their competency and if they can freely make an informed decision, or if the son might be exercising improper influence on them to turn over their assets to him.

If the parents are competent, they can amend their trust freely as long as the trust document contains provisions allowing them to do so.  Almost all revocable living trusts contain such provisions.  If, however, they lack capacity, then making amendments to the trust will be considerable more difficult.

There are a few different steps that can be taken. One is for the son, if he believes that his parents are mentally competent, to make an appointment for them with an estate planning attorney, without the son being present in the meeting, in order to determine their capacity and wishes. If the attorney is not sure about the influence of the son, he or she may want to refer the parents for a second opinion with another attorney.

If the parents are found not competent, then the son may need to become their conservator, which requires a court proceeding.

Planning in advance and discussing these issues are best done with an experienced estate planning attorney, long before the issues become more complicated and expensive to deal with.

Reference: Daily Republic (Aug. 10, 2019) “Amending trust easier if parents can make informed decision”

Why Did a Georgia Woman Try to Trick a Judge Concerning Her Son’s Special Needs Trust?

A Georgia woman surrendered to the Gwinnett County Detention Center recently and remains behind bars without bond on charges of perjury, forgery, identity theft, theft by deception, criminal solicitation and exploitation of an at-risk adult.

Yvonne Longmire’s son, 20-year-old Lee Earnest Longmire, is still missing. He has been declared a ward of the state but his guardian at the Georgia Division of Family and Children Services has not seen him or cared for him.

11alive.com’s recent report, “Mother accused of trying to swindle special needs son out of trust fund turns herself in,” says that Yvonne Longmire and her attorney informed the police that Lee is “okay” but haven’t divulged his whereabouts or cooperated in turning him over to DFCS, as ordered by the state. The attorney told police that a doctor signed off on Lee’s recovery, stating he had become higher functioning. The man has special needs and has not been seen in years. His mother is accused of attempting to scam him out of his trust fund.

“Obviously, there are different interpretations of what OK is. We need to make sure that he’s OK to the standards set forth by the state,” Gwinnett Police spokesperson Wilbert Rundles said.

Yvonne Longmire is accused of hiring another man, 23-year-old Maurice Ford from Atlanta, to take her son’s place in court to convince a judge that he no longer needed a conservator over his trust fund, which is valued at $200,000. However, before the funds could be withdrawn and given to Yvonne, the former conservatory attorney and his paralegal became suspicious and called the police.

According to the police report, Yvonne provided a driver’s license to the attorney, who acted as Lee’s conservator, but he said the picture didn’t look like Lee. The paralegal found a photo of Lee on Facebook, and the two confirmed it wasn’t the same person.

But one of Lee’s old teachers also saw the driver’s license and said it was him, according to the police report.

Maurice Ford was arrested in Phoenix, Arizona and is currently awaiting extradition to face charges in Georgia. In the meantime, the search continues for Lee.

“Our primary focus is his safety,” Rundles said. “We care about his well-being, we care about his safety and we want the people that are going to be able to take care of him to provide him care or put him in a long-term care facility, where he can be cared for by someone who does have his best interests at heart.”

Reference: 11alive.com (March 5, 2019) “Mother accused of trying to swindle special needs son out of trust fund turns herself in”

Why is Actress Edie McClurg’s Family Asking the Court for a Conservatorship?

Family and friends of the 67-year-old actress Edie McClurg recently filed court documents requesting a conservatorship to manage her affairs, according The Daily Mail article, “Edie McClurg of Ferris Bueller’s Day Off suffers from dementia prompting family to seek conservator.”

Edie McClurg

They said neurological tests provide evidence that McClurg is unable to live alone without assistance and is “especially vulnerable to undue influence, given her poor judgment and evident dementia.”

A conservatorship is a court case where a judge appoints a responsible person or organization (“conservator”) to care for another adult (the “conservatee”) who is unable to care for herself or manage her own finances.

Court documents show that her family and friends have an immediate concern about a 72-year-old male friend, who has been living with McClurg for several years. The individual has discussed marrying her. However, McClurg’s family and friends don’t believe she’s capable of understanding their relationship. They also allege that he’s been verbally abusive and tried to compel her to sign documents altering her estate planning. The filing asked the court to appoint McClurg’s cousin Angelique Cabral as the conservator.

McClurg played Grace, who was the assistant of Principal Edward R. Rooney, in the 1986 teen comedy Ferris Bueller’s Day Off, starring Matthew Broderick. She made her film debut in the 1976 horror movie Carrie by director Brian De Palma based on a novel by Stephen King.

McClurg’s film credits also include A River Runs Through It; Planes, Trains and Automobiles; and Back to School. The actress also has done voice work on film and television including The Little Mermaid, Frozen, Wreck-It-Ralph, and A Bug’s Life.

McClurg was born and reared in Kansas City, Missouri. She graduated from the University of Missouri Kansas City and also earned a master’s degree from Syracuse University.

Reference: Daily Mail (February 2, 2019) “Edie McClurg of Ferris Bueller’s Day Off suffers from dementia prompting family to seek conservator”

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