A person who creates a Living Trust is often held in high regard by their family. This dynamic can make it difficult for both beneficiaries and the grantor to admit they may no longer be fit to fulfill their duties. Still, making these objective decisions is critical to protecting a trust. Determining incapacity is a complex legal process. Here is how California probate law defines the incapacity of a grantor and why you need a premier attorney to prove it:
What is the Incapacity of a Grantor?
In the context of California probate law, incapacity refers to when someone can no longer manage their own financial and legal decisions.
California Probate Code § 810-13 defines incapacity as when someone is ‘without understanding,’ ‘of unsound mind,’ or ‘suffers from mental deficits so substantial that they lack the legal capacity’ to take care of themselves and make appropriate decisions.
Incapacity can be temporary or permanent, and if an individual regains the ability to take personal responsibility, courts can reverse their order. Furthermore, incapacity is most often an element people encounter in Living Trusts.
Examples of Incapacity
Still, defining the incapacity of a grantor under California probate law is complicated, and examining examples is the best way to understand what it is. Situations that constitute general incapacity may include the following:
- Can no longer understand or communicate with others
- Cannot understand the consequences of their actions
- Can no longer recognize people or things that were once familiar to them
- Cannot control their moods and are acting inappropriately
- Can no longer make logical decisions
- Is experiencing delusional thoughts or hallucinations
Sometimes, incapacity may be obvious to observe. However, this is not always the case. For example, while some diseases like Alzheimer’s or dementia can deteriorate mental faculties, a medical diagnosis is not enough for a judge to rule someone is incapacitated.
Ultimately, determining incapacity is a complex legal process that is often imperative to preserve the integrity of a trust.
How Do Courts Determine the Incapacity of a Grantor?
Legally determining a grantor was incapacitated when creating or managing a trust is critical under several circumstances but requires navigating California probate law.
From contesting and invalidating trusts and trust amendments to taking over a trust to maintain it, there are several situations where determining incapacity is essential. Ultimately, courts make the final determination. Proving incapacity requires:
- Consulting with medical professionals for expert opinions
- Running tests and evaluations
- Reviewing medical records to determine the extent of impairment
- Going to court
Medical professionals usually must practice in the state where the grantor created the trust. Typically, the trust will specify that the medical professional must specialize in the same condition they suffer from.
Trusts may also dictate how many doctors or physicians one must consult to establish incapacity. Courts can also exercise jurisdiction and declare a grantor is incapacitated with sufficient evidence, after which they will appoint a guardian.
Depending on the trust document, some individuals also enable a panel of family, friends, and advisors to determine incapacity. Ultimately, this is a significant decision that can have far-reaching consequences on a trust and its assets.
To determine your recourse to either remove a grantor from managing a trust because they are mentally incapable or to contest a trust because they demonstrated incapacity when creating or amending a document, consulting with an expert trust lawyer is essential.
Contact A Trust Attorney to Prove Grantor Incapacity Under California Probate Law
Accepting that a grantor can no longer perform their duties can be hard. However, failing to act has severe consequences on a trust and its assets. Whether you want to proactively appoint a guardian or need to contest and invalidate a trust or amendments made to a document, only a premier trust attorney understands how to interpret the legal language of a trust document and navigate the complex court system.
Fortunately, at Gokal Law Group, our expert attorneys boast unparalleled knowledge and skills and an unwavering dedication to preserving the integrity of each client’s trust. Contact us to learn everything you need to know about incapacitated grantors and trusts.