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My mom has everything in a trust which names my brother and I co-trustees when she can no longer handle her affairs. She has alzheimers and is not legal to drive according to the results of the eye exam I just took her to. My question is my brother and I are going to meet and tell her she can no longer live alone and she can move in with which ever one she chooses. We both live 2 or more hours away. If she will willingly appoint us as her trustees what do we need to do to start the process? Do we go to her bank? Her attorney that drew up the trust was in private practice and is deseased. Do we begin at the courthouse? I know if she won't willingly give up her trustee to us then we have a bigger problem. The document states that her doctor and attorney have to agree that it is in her best interest to turn it over to my brother and I. Any help in this matter would be appreciated.

Thanks!

Marilyn

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I went through what you are describing (minus the deceased attorney). I suggest the first step is to get a good trust attorney. Ours helped guide me through the process. Also, don't assume that your Mother will not work with you. I thought Dad would fight me all the way. In the end, he seemed ok with resigning as trustee and moving (across the country) to be closer to me. We also got his doctors to sign statements to make sure that no one comes back later and claims that we did not act properly.

Part of what helped was that I tried to give him as much say in the process as possible. As an example, he came to visit and the two of us visited all of the independent and assisted living facilities together. It was pretty clear which were appropriate and which were not. Also, my sister and I are co-trustees and can sign separately. We trust each other and this is a good arrangement for us. If something were to happen to one of us, the trust can continue to operate smoothly.
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I might add, depending on the amount of money your mom has, that a consultation with a bank trust officer could be helpful. Not only do they take care of much of the time-consuming work, but they are also knowledgeable about tax and estate requirements and know who the best attorneys are to refer to you for your particular situation.
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I am going through this right now; luckily, my mother is in agreement (actually welcoming of it) with me becoming the co-trustee. The lawyer who drew up the original Estate documents is also deceased. The first place to start is to find a new Estate lawyer and meet with him/her. Your mother will need to agree with this, otherwise, you will have to determine her as legally incompetent which requires medical documentation and a court hearing (that can get ugly). Hopefully, it will not come to that. Before you can go to the banks, or any other financial institutions with her name on it, you MUST have the lawyer make you (and your brother) co-trustees. So save yourself time running around to these institutions, now, until you have the proper paperwork completed. I understand it can be a lengthy process ... I'm just at the beginning. Good luck!
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Find an attorney whose specialty is estate planning to draft the document. If you are concerned about the spend-down to Medicaid, look for an attorney who also specializes in Elder Law. Your attorney will make sure all of your mother's documents are integrated and work with each other. Once the trust is in place, you need to make sure that all of her assets are titled in the name of the trust. Many people miss this step, or don't retitle all of the assets, and they then become subject to probate upon her death. There will also be special tax filing requirements each year depending on the type of trust you establish. If your mother is not willing to do this (or deemed competent to do so by the attorney), and you do not have a Power of Attorney for her, then you may need to petition the court for guardianship of both the person (your mom) and her financial affairs.
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whitebmwa, you will need to talk to her and explain it so she can understand the consequences of what if she does not do this. I know they are stubborn but should she have a stroke, its too late. Are you DPOA now, because if so, you can do this without her. I am trustee , caretaker, and in charge of her health care proxy. My suggestion is an irrecocable trust, sell her assetts and put into a money market savings account and a caregivers contract for whomever she lives with. You or your brother will get paid for the caregiving and it can be considered a spend down so a nursing home wont take it. I never plan to go that route, Moms staying with me but as the years go on they need a ton of money. They need caretaking, daycare, diapers, wipes, the heat on high, special foods, etc........
Good luck. (I would suggest one be trustee, not two)
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I have not handled this situation personally, exactly, but one of the things I wish I had done a better job of in regards to my mom's declining health is to get involved in all of her household expenses and service providers. I wish I had gotten more closely involved in bill paying and kept records of phone numbers of anyone who did anything for her. When she was unable to do things, it happened over night, in a blink and now I'm scrambling to find things and the mail comes in with something new every day.

Best wishes to you and your brother and special acknowledgement for your loving kindness to take her into your homes. There are many examples on this site where families work together to ease the burden of caring for a loved one.

I also agree with finding a good attorney. My mom's is elderly and very difficult to work with, because he is disorganized and slow because of his age and declining abilities. Ask your neighbors and friends for someone who is conveniently located to you so that you can pop into his or her office easily, when it becomes necessary for you to do that more frequently.
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Attorneys won't do a consult over the phone, you'll need to make an appt for a consultation in person...just sayin'.
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I'm not sure about the trustee issue, only the durable power of attorney. Get a phone consult from another family law attorney since the original attorney has passed. Good luck Marilyn.
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