Legal Question in Wills and Trusts in Florida
Background: Assume there are four children who are beneficiaries of a trust created by their mother. The trust splits the assets upon the mother�s death into four equal shares to be distributed to each of the four children. The trust further states that the mother can�t change the percentages of the distribution to each child without two of the children�s written agreement. This was created to prevent one child from doing a last minute death bed change to their benefit. If a vote was called to make a change and one of the children was mentally incompetent, I believe I am correct in assuming a case could be made against the validity of the vote case by that child.
Question: Do you agree? If you do, and that child is declared mentally incompetent by a court, does his vote extinguish and now only the remaining three children can vote or can the vote pass on to his son, a grandchild of the mother. Assume the son already has a full POA due to the father living in a nursing home.
3 Answers from Attorneys
If the child has been declared incompetent by a court, then obviously, unless the court order permits it, they couldn't vote. But in that case their Guardian may be able to do so on the wards behalf (though it may require the court's approval too). So the vote is not necessarily extinguished.
I agree with Mr. Kaplan. The child who is mentally incapacitated would need a guardian.
My only addition would be to check into the terms of both the trust permitting or perhaps prohibiting the attorney in fact from acting under a "Durable Power of Attorney" that the son may wish to use, and if it was executed by the father prior to the incompetency. Also I would suggest that you do proceed to court since it is easy enough to do under Chapter 736 to determine both the construction (meaning) of the trust restrictions if any, and to make a record as to the incompetency of the father (Ward); otherwise there is nothing formal in the record that establishes the date of any incompetency. While this may appear sillly to you, there are legal cases where a "chiropractor" and 'podiatrist" were the last treating physicians and unfortunately they made the incompetency call and not a typical MD or psychologist- and it was an expensive lesson to learn for the parties.
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