As surprising as it may seem even the Grantor must comply with the terms of his or her Trust. A client recently inquired about a certain Trust and its terms regarding incapacity. His quandary brought up the discussion of when should a Trustee be removed for lack of capacity. To learn more about lack of capacity you may want to review my blog on When Is It Time to Remove a Trustee for Lack of Capacity?
SIGNIFICANCE OF TRUST PROVISIONS
In the Jervis v. Tucker case the Grantor was determined to be incapacitated by the court during her extended hospital visit. Her Trust set forth the provision that if she were to become incapacitated, that a Successor Trustee may be appointed. The language in her Trust required her to be determined to lack capacity by the court. Also, the Trust provision provided that if she no longer lacked capacity, her powers may be restored as long as she was deemed fit by the court or obtained written opinion of two licensed physicians.
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