In California, No. Under Florida law, I cannot say. The point is it is irrevocable on her death not her incompetence. As long as she is alive, she can, often through her Conservator or Agent, amend or revoke and often the reasons to do this are tax driven. The ability to do this is governed by the Trust instrument though there may be an issue of "substituted judgment'.
Contact your local bar association for referral to an attorney who specializes in this. Often, but not always, the attorney will do an initial consultation free of charge. You will then be in a better position to determine what to do next. Best of luck to you!
If you liked this answer, click on the thumbs up! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.
A settlor's incompetency does not make a revocable trust irrevocable unless that scenario is specifically stated in the trust. Incompetency also does not change the beneficiaries' rights under the trust.
Normally under a revocable trust, the settlor is the beneficiary until the settlor's death. The Trustee would continue to make accountings to the incompetent settlor's guardian or power of attorney until the settlor's death.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice. Circular 230 Disclaimer: Any information in this answer may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.
I am a Florida Lawyer. Since you asked about Florida law, I suggest that you take opines of Florida licensed attorneys only. In Florida a revocable trust does not necessarily become irrevocable when the Settlors become incapacited. If the Settlor named themselves the trustee then successor trustees should step in at this time under the language of the trust and continue administering the trust. Not seeing the trust it is difficult to determine the intent or purpose of the trust. I’m not sure about your term “qualified” since I have not read the trust. Depending what the trust says if the purpose of the trust is for example to care for the Settlors and all the funds are expended during the Settlors life then beneficiaries never receive anything!
See an elder law attorney since this subject can be complex and other issues are created that you might require further information. My website below may have articles that may further be of interest to you on this subject. If you think this post was helpful, please check the thumbs up (helpful) tab below. Thank you!
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
Dan W. Armstrong, Attorney
Law Offices of Dan W. Armstrong, P.A.
P.O. Box 1535
Ponte Vedra Beach, FL 32004-1535
(O) 904.280.0058, (F) 904.280.0109