Legal Question in Wills and Trusts in California

He needs to have himself appointed to be her conservator. This illustrates why a springing durable power of attorney can be so important in elder planning. Your father should have one drawn up in case he becomes incapacitated.

Look in the binder containing the family trust to see if what Mr. McCormick is referring to is in there. If you can't find one you should go see an attorney to start the conservatorship petition for your mom-and I would suggest having you be the petitioner and proposed conservator, not your dad, as it will be much easier downstream for all of you.

II doubt if a full blown conservatorship is necessary in this situation. If your parents have a living trust, your dad probably holds power of attorney for your mom (and yes, he needs a new one for himself, because she is probably HIS attorney in fact) and most likely the trust provides that if one spouse is incompetent, the other spouse shall act as sole trustee. This usually requires one or two doctor certificates. Then, he would be able to sign Certifications of Trust showing that he is the sole trustee, and get your mom's name off everything. He should have a lawyer review the documents.

No conservator is needed for the assets in the trust. The terms of the trust should say what happens when one settlor loses capacity and it typically requires one or two doctor opinions and other documentation. If the assets that your father is trying to handle are in your mother's name alone, then your father needs a power of attorney or if they are community property, then he can petition the court to handle the community property as the well spouse. If no power of attorney, assets not in trust and they are your mother's separate property, then a conservatorship is necessary.

All of the above is great advice. Does the trust document have any provisions for when a Settlor/Trustee becomes incapacitated? Often a trust will have a provision for the remaining Settlor/Trustee to take over individually or possibly have a Successor Trustee appointed. Hopefully a conservatorship won't be necessary.

Since this is a very complicated issue, the best advice I can provide is that you should contact a local estate planning attorney for a consultation.

Good luck.

The trust should have been drafted so that when one of the trustors (creators of the trust) is not competent, the other can easily become the sole trustee and handle everything.

You should retain a qualified attorney to assist you with this difficult situation.