A revocable living trust is generally designed to be changed by the person who created it while that person remains legally capable of making estate planning decisions. Problems arise when the trust creator develops dementia, suffers a serious medical event, or otherwise loses the ability to understand and approve an amendment. Families in Westlake Village may then ask whether an agent under a power of attorney, a successor trustee, or a court-appointed conservator can change the trust.

A successor trustee usually has authority to manage trust property after the settlor becomes incapacitated, but management authority is not necessarily the same as authority to amend the trust. The trust document should be reviewed carefully to determine who may amend or revoke it and whether anyone other than the settlor was given that power. Many trusts reserve amendment authority exclusively to the settlor.

An agent acting under a durable power of attorney may have broad financial powers, but the agent should not assume those powers include changing the principal's estate plan. Certain actions affecting trusts, beneficiary rights, and transfers at death may require specific authorization in the power of attorney. Even when language appears broad, the proposed change must remain consistent with the agent's fiduciary duties and the principal's known wishes.

A conservator may sometimes ask the probate court for authority to engage in substituted judgment estate planning. This process can involve requests to create, amend, or revoke a trust, make gifts, change beneficiary arrangements, or complete other planning that the conservatee might reasonably have undertaken. Court approval is important because the conservator does not ordinarily receive unlimited authority to redesign the conservatee's estate plan.

The court may consider the conservatee's prior estate planning, family relationships, tax circumstances, probable wishes, and the financial needs of the conservatee and potential beneficiaries. Notice may be required to relatives, beneficiaries, and other interested persons. Objections are more likely when a proposed amendment would benefit the conservator, the conservator's family, or one beneficiary at the expense of another.

Families should also distinguish diminished capacity from complete incapacity. A diagnosis alone does not automatically establish that a person lacks capacity to amend a trust. Capacity can depend on the person's ability to understand the nature of the document, the property involved, the intended beneficiaries, and the consequences of the proposed change at the time it is signed.

Key takeaways:

• A successor trustee generally should not assume that management authority includes authority to amend the trust.
• A power of attorney must be reviewed for specific authority before an agent attempts estate planning changes.
• A conservator may need court approval through a substituted judgment petition.

This article provides general information, not legal advice. Questions involving a California trust amendment after incapacity should be addressed before documents are signed or assets are transferred.

Helpful educational resources:

• https://selfhelp.courts.ca.gov/conservatorships
• https://leginfo.legislature.ca.gov/faces/codes.xhtml
• https://www.courts.ca.gov/forms.htm

Call Westlake Law Group at (818) 444-2022. Our office can review the trust, power of attorney, conservatorship orders, and proposed amendment to determine what authority may be available. 30699 Russell Ranch Road, North Building, Suite 210, Westlake Village, California. Virtual consultations are available throughout Southern California.