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Advice & More November 2012

Legal Ease

Coping with Disabilities and Poor Health for Sound Legal Planning

By Jonathan J. David

If your wife still has legal capacity to do so, you could have her resign as trustee, which, from an emotional standpoint, is much different than being removed due to a disability.

Dear Jonathan: My widowed mother named my brother as her agent under her power of attorney, and her patient advocate under her health care power of attorney several years ago. Her health is now in a state of decline and is getting to the point where she can no longer act for herself. Unfortunately, we have no idea where my brother is; he left town a few years back after an argument with my mom, and we haven’t seen or talked to him since. We don’t even know where he is or how to get hold of him. What are my mom’s options?

Jonathan Says: If she named you or someone else as a backup, then that person could step into your brother’s shoes and act on behalf of your mother as her agent and patient advocate pursuant to those documents. If your brother was the only person named as your mother’s agent under her financial power of attorney and patient advocate under her health care power of attorney, then those documents are rendered useless by your brother’s absence.

In that event, your mother, if she is still legally competent to do so, should prepare a new financial power of attorney and health care power of attorney, which specifically revoke the ones naming your brother as her agent and patient advocate and which name a new agent and patient advocate, with at least one alternate, to act on her behalf.

Naming an alternate is important because if the primary agent and/or patient advocate is unable to act, that alternate can step into the agent’s or patient advocate’s shoes, which will serve to avoid the problems your mother is now having due to your brother’s absence.

If your mother is not legally competent to execute new documents, then your only choice is to have someone appointed as her guardian and conservator through the probate court located in the county in which she lives. Good luck.


Dear Jonathan: My wife and I are the settlors and trustees of a joint trust we prepared a few years back. Unfortunately, my wife was diagnosed with early onset dementia and is no longer capable of acting as trustee. I could continue to act as sole trustee, but my health isn’t the greatest either, and I would like to have my daughter sign on as co-trustee.

I spoke with my attorney about how to go about this, and he advised me that the trust provides that if either my wife or I were to become disabled, that our daughter, who is named as successor trustee, would immediately step into the shoes of the disabled spouse as co-trustee of the trust. That is fine except in order to make that happen, the trust requires that my wife’s physician first make a determination of her disability and then my wife would automatically be removed as trustee, allowing my daughter to take over as co-trustee. I have a real problem with doing that. I know it sounds silly, but my wife still has enough cognitive ability to understand certain things and I don’t want to insult or hurt her by having her determined to be disabled by her doctor and involuntarily removed as trustee. Are there any other options?

Jonathan Says: If your wife still has legal capacity to do so, you could have her resign as trustee, which, from an emotional standpoint, is much different than being removed due to a disability, and, again, if your wife has legal capacity to do so, the two of you could amend the trust to allow for the immediate appointment of your daughter as co-trustee with you, assuming that the trust does not already provide for this. If your wife does not have legal capacity to execute a resignation and amendment to trust, then assuming she has signed a durable power of attorney naming you as her agent, and that power of attorney has the appropriate provisions in it, you could sign any such resignation and amendment to trust on your spouse’s behalf as her agent under that durable power of attorney.

I recommend that you consult with your attorney to determine the best way to move forward in this matter taking into consideration your wife’s health circumstances and what you are permitted to do under the documents you have in place. Good luck.


Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, PC , 1700 East Beltline, N.E., Grand Rapids, Michigan 49525.

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