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My mom and sister are Trustees on Mom and Dad's Revocable Living Trust.
Mom has dementia and no capacity to make legal decisions. My sister as Trustee is handling her care (Full-time caregivers, dr. appts., all decisions). Sister has become increasingly hostile towards me, and our communication has deteriorated to the point of non-existence. The last text I sent her was not replied to.


I'm getting concerned about my sister not fulfilling her duties as Trustee and/or possibly breaching her fiduciary duty. Her daughter lives with her and has been unemployed for a few years now. With caregivers 24/7, when someone calls in sick, it's usually hard to find a replacement at the last minute. Sister recently texted the beneficiaries and said her daughter has been stepping in during these emergencies and she thinks she should be paid for it. I replied saying I had no problem with that as long as she is paid through the company that hires the other caregivers.


I just learned from one of the caregivers, Mary, that Sue, another caregiver, had texted Mary and asked if she could work Sue's shift one day. Mary agreed. Then one of them told my sister about the agreement, and sister said from now on all caregivers have to go through her, and Mary will not be working Sue's shift, that her daughter will, because her daughter "has the least amount of hours."


This is different from the original statement by sister to have her daughter step in for an emergency. To me, it seems like she is now giving her daughter preference.


I have a copy of the trust, but I don't understand it completely. The trust says the law firm that drew up the trust is also the Trust Protector, but I'm not even sure of all the duties of the Trust Protector.

Some questions I have are: Does a revocable trust automatically become irrevocable if my mom is incapacitated, and how does that change things? I've read online that for an irrevocable trust, the Trustee is now required to make yearly accountings to the beneficiaries. Also, does something legally need to occur to determine that my mother lacks capacity, besides a mention in notes during a doctor visit for some other issue?


I'm concerned that my sister doesn't understand her role as Trustee, but I don't even understand it, so what I need to do first is understand the trust.


All that leads up to the first question: Do I contact the law firm that drafted the trust (and Trust Protector) to ask questions about the trust? Or do I contact a separate law firm to ask questions about the trust? I need to understand the trust first before I can address the (possible) issues of my sister's duties as Trustee.

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Cheryl, by the way, if you contact the Trust with questions, be prepared to receive a bill for the services. All legal questions like that are billed by the quarter hour in my experience, and not a normal operating expense of the Trust unless determined by the Courts to be so.
Actually, igloo is usually spot on with advice.  The capacity of your parent, unless determined to be incompetent in a court of law - expensive - will be assumed to be held in effect for the revocable nature of the Trust. Absent language to the contrary, as Garden notes, the Trust will remain in effect in current form unless a court determines otherwise. Are you or your sister guardians? At that time, filings should have followed all of the legal proceedings. If your parent outlives the Trust, which many times will happen, you will need Medicaid for your parent's care which will not cover 24/7 care in the home and Medicaid personnel will definitely look over all expenditures related to care. If you think that your situation involves fiduciary misdeeds, get your own lawyer - pay for that lawyer - and if you're right, submit an accounting to the Trust for your expenses if you petition for removal of the Trustee. Painful, expensive, and will deplete resources very quickly for your parent. Revocable Trust when Medicaid comes into the picture changes everything as well, but that is not in play YET. As long as your niece is paying proper taxes and the Trust is reporting her income for Medicaid purposes later, does it matter who is being paid as caregiver? Why is preference to family a problem for being given hours if they are paid at the same $$ amount as non-family? You'd be paying whoever was sitting in the room with your mother wouldn't you?
Also, be prepared for the firm that prepared the Trust if you are not listed as a person able to get financial information to inform your sister of your questions and possibly refuse to answer absent subpoena.
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GardenArtist,
Thank you for a respectful, direct, nonjudgemental answer to my questions. That is exactly what I needed to know.
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Thanks for all of your answers.
Igloo, OUCH! I sense a lot of anger in your reply. You are quite judgy and making a lot of assumptions with so little detail in my post. You must have had a bad experience with your own family dynamics and I'm sorry for that, but I was really hoping for just a nonjudgemental answer to my question: Should I contact the law firm who drafted the trust, or get my own attorney?
Thank you
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Word of caution -- and I hope this doesn't apply to you. I have GIVEN countless hours to my Dad's care & well-being. My siblings didn't like how I handled things, questioned and criticized, but they did very little to help, & only at their convenience, then nothing. I cut them off. Now if they want to know, they can hire an attorney to ask me. When he was in my home or his, I felt it was much better for him to have family care than a stranger. Not sure if that's something you've considered, but we care-givers have to balance so many issues, including mental & emotional health. Please don't take this as a stab at you; I hope that your family fares better than mine has thru all of this.
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I’d suggest you get your own estate atty to review the Trust.

? for you? so what funds the Revocable Trust? This is pretty important. If you don’t exactly know...... you need to calmly think back as to what all the assets were at the time the Trust was done that could have been titled to become assets of the Trust. Also realize that Trusts defund & it could well be that the costs of care & living expenses are depleting $$$ to the extent that Trust will defund. It won’t matter if your named to be one of the beneficiaries...... the $ is gone. 

I will say that if your mom truly is needing 24/7 care, it’s an overwhelming job for all involved. Sissy may just be at wits end in all things mom; and you are viewed as the not involved in daily care sibling but all involved in finances sibling..... and she’s just exasperated with you. Your carping about 1 caregiver getting more hours than the other 2 caregivers cause that caregiver is family..... I’d bet Sissy wanted to scream at your last text. Really what amount of $ are you taking about?? Caregivers maybe at best being paid $15 - $23 hr. 

Most dealing with at home care for a elderly parent do the caregiving for FREE and there’s no Mr&MR$ Revocable Trust...... not to sound harsh, but don’t expect a lot of sympathy for your concerns. 

Realize that trusts defund & there could be no $ left for anybody. Not you, not Sissy and more importantly no $ for mom.
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Some of your questions really require legal answers, from a qualified person such as the attorney who drafted the trust.

Just a comment as to irrevocability if your mother is incapacitated...A Living Trust typically becomes irrevocable on the death of the Settlor, the individual who made the trust, and who also might be the Trustee. The language of the Trust really governs, as it sounds like your mother didn't create the Trust herself.

Other questions arise from your sister's role as Trustee, and caring for your mother. I think there's a possible erroneous blending of your sister's responsibility as Trustee vs. as a daughter or someone named as proxy in a DPOA, unless the Trust specifically states that care for your mother is a function of the trustee.

But you write of a Trust Protector. The estate planning law firms for which I worked never included a Trust Protector in their trusts, so I'm not conversant on this issue. I see from a quick check that it's someone who acts as a balance of power between the relevant parties, and should not be a family member.

There's a good article by Estate Street Partners, LLC on the role of a trust protector.

I think you have a complicated situation that requires discussion with the attorney who prepared the Trust. There are too many questions about the issue and governance for someone who hasn't read the Trust to respond accurately.
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