The trust is revocable. Does it become irrevocable because my mother has alzheimers and is in a care facility? My sister is trustee and she is using funds from the trust for her own benefit. She and her husband have moved into my mothers house and are planning on selling their own, and they have bought a very expensive car. How can I prove breach of fiduciary duty if I cannot get an accounting? One attorney I spoke with said the trust is irrevocable due to my mothers incapacity. Another attorney said our only remedy would be to pursue a conservatorship of my mother. What can we do?
A problem is that the facts you describe could easily be part of a Medicaid plan that aims at preserving your mother's assets while qualifying for Medicaid assistance. This is a situation where a little calm conversation with your siblings could resolve suspicions and confirm that all is OK... On the other hand, your sister could refuse to give you any information, based on her fiduciary duty to your mother to maintain confidential information as confidential... Try reaching out, if that doesn't work and your suspicions are overwhelming, contact Adult Protective Services to investigate.
This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first.
While the beneficiary of the trust is still alive, the trustee's only duty is to her. Therefore, generally, you are not entitled to an accounting from the trustee, even if your mother is disabled with Alzheimer's disease. The language of the trust controls whether it becomes irrevocable upon her incapacity.
Using your mother's money for her own benefit is a breach of your sister's fiduciary duty to your mother. It's unlikely that your sister will voluntarily admit this if true. If your sister and husband have financial problems, there may be something to your suspicions.
Your options include filing a court petition to establish a conservatorship of the person and the estate, or filing a civil lawsuit on your mother's behalf for elder financial abuse. Either option will be expensive. You might begin by having an attorney write a letter to your sister explaining your concerns. Her response may tell you what you need to know. Good luck.
My answers to questions posted on Avvo are for general information only and are not intended to constitute legal advice or to create an attorney-client relationship.
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