Can Parent Change Revocable Living Trust to Irrevocable One?

What is the name of your state (only U.S. law)? California

My mother has a Revocable Living Trust with two pieces of real estate in it. She is 89 w/ mild dementia (can carry coherent conversation but repeats herself a lot and cannot reason out some simple problems). My brother and I are the beneficiaries. My brother is out of state and does not contribute to any of her care. I take care of her personal and financial matters as the co-trustee while she resides in an assisted living care facility. I have managed her funds in a totally responsible way and have not touched a dime of her own money as I have sufficient monies for myself. But her bank account is running low as a result of spending nearly $4000/ mo. for her care. She refuses to sell any of the RE to pay for her assisted living expenses but cannot comprehend that she needs money to pay for the expenses. I have some funds to help her but it could run into several hundred thousand dollars over her projected lifespan and these are my retirement funds. I am afraid that in her aged confused mind she will at some point get angry at me and change the terms of the RLT to leave both RE properties to my brother or someone else. Then I would lose my retirement monies that I spent to help her. Is there a way to convert the LRT to an Irrevocable one w/ me as the sole trustee and beneficiary? If so, can it be done via some kind amendment to the original Trust rather than create a whole new Irrevocable Trust? The RE could then be used as collateral and then reimbursement for the money I pay for her care. The Irrevocable would stipulate that my brother would receive a monthly bequeathement as he is religious and likely to donate any sizable inheritance to his local church, something my mother would abhor. My brother and I have a good relationship. Thanks for any input.What is the name of your state (only U.S. law)?

You need to be talking to a lawyer pronto about mom's mental condition.

Your plan to usurp the trust is not sound.

You loaning money to be repaid later after mom dies from sale of assets to avoid confronting mom - not a sound plan.

Best plan is to force the sale of these assets over mom's objections.

Mom would have to pay huge capital gains tax on sale while she is alive. Step-up to present market value after her passing is infinitely more preferable to selling in a depressed RE market now, not to mention earning her lasting wrath if I forced sale over her objections..

Thrillobyte said:

Mom would have to pay huge capital gains tax on sale while she is alive. Step-up to present market value after her passing is infinitely more preferable to selling in a depressed RE market now, not to mention earning her lasting wrath if I forced sale over her objections..

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OK - so you want to leverage against yourself the entire value but o nly get half at inheritance time?

No - you want to disinherit your brother because he doesn't contribute.

That is not going to work and is a recipe to get sued.

You can't have it both ways - mom can't be incompetent to make her own finance decisions but competent to write your brother out of the will...

Work with a lawyer and and estate planner and an expert in elder care planning.

Trying to avoid the tax man does not mean it is the way to go.

If mom is not competent then you step up and take charge, do what is right by her.

I think we got sidetracked. Original question was: can a RLT be changed into an Irrevocable w/ an amendment made by my mother based on her understanding that I am contributing lots of my own money to take care of her while she holds onto her own assets for present, or does a totally new Irrevocable Trust have to be drawn up at considerably greater cost. At her passing, naturally I would want to be compensated from her estate for the hundreds of thousands I spent. Mom understands I don't intend to leave my brother out in the cold but remember, he's not wise with money. That's why she made me the co-trustee, to look out for him. BTW. thanks for your input. It's pretty sensible, but mom is not incompetent, just has mild demential (short-term memory loss and inability to think out some simple problems related to finance.

Thrillobyte said:

It's pretty sensible, but mom is not incompetent, just has mild demential (short-term memory loss and inability to think out some simple problems related to finance.

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See mom's mild dementia now cannot be examined post mortem. Which is what I would do if I was brothers lawyer and seeking to contest his shortened stick in the will and cast you contribution to mom as voluntary.

BTW I am not a lawyer - just a consumer posting consumer advice on a consumer advice forum. Consult your own lawyer.

If you are adamant about doing it this was, for god sakes makes sure brother is on board.

Tell us what you have done to convince your mother that her $$ are running low? It seems that until you get the point across, she will have no reason to sign anything.

All she has to do is see her balance. But she mistakenly believes she can return to her normal life at home alone after her ankle completely heals (which it never will), which will be a death sentence for her, but she cannot be made to see that. She's completely convinced she can return home, hence she believes she doesn't need to sell any RE to pay for assisted living.

Thrillobyte said:

She's completely convinced she can return home, hence she believes she doesn't need to sell any RE to pay for assisted living.

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Then her state of non-competence is much more severe then you suggest.

Possibly. Would extreme denial of one's condition be a form of incompetence? The administrator of the nursing home where my mom stays says that even thought she (administrator) knows it'd be a death sentence for my mom to return home w/o supervision, she can do nothing about it far as the law goes. According to her, my mother is competent enough to make her own decisions regarding this matter. Go figure.

"All she has to do is see her balance." "...but she cannot be made to see that."

I'm confused. These do not seem to be the words of someone who has had a blunt talk with his or her mother. Is this the part where you are afraid she will turn on you?

Oh, i've had the same conversation with her 100's of times - nearly every time I visit her:

Mom: So when can I go home?
Me: Mom, it's not a good idea. Your ankle is not healed. It'd be dangerous for you to go back.
Mom: Oh, I'm fine. I can get around just fine. I can look after myself.
Me: Mom, you can only stand on your ankle 5 minutes at a time before it starts hurting and you have to sit down.
Mom: So I just use a wheelchair to get around.
Me: Mom, you need someone there to take care of you.
Mom: How much will that cost?
Me: At least the same amount as you pay here. Probably double if they have to stay 24/7.
Mom: oh, that's silly. I can't afford that. And I don't need anyone to look after me. I've been taking care of myself for the last 40 years.
Me: Mom, you're 89 now. It's not like 40 years ago.
Mom: I'm just fine. I don't need to be wasting my money here. I prefer living at home. And I'll be just fine.

And around and around it goes. That's an almost exact duplicate of innumerable conversations we've had. So if there's incompetence, where does it lie? She can answer coherently, but cannot be made to understand the gravity of her situation if she returns home unaided.

I'm even more confused. She does appear to understand that the $$ aren't there.

Perhaps others can weigh in on whether wanting to go home = incompetence. I doubt it. In fact, I think most will agree that wanting to go home is quite sane.

She thinks everything will be ok, and you don't. No one has convinced her otherwise, so she will need to find out one way or the other for herself. Instead of insisting on doing things your way, use reverse psychology: figure out a way to do things her way that will prove you (or her) right sooner, rather than later.

I think tecate has shown much wisdom in the forum on such matters. It's almost like he has a lot of experience on dealing with issues like this. It would be good to follow his advice. It's practical, legal and prevents the pissing contests where everyone will lose.

tecate said:

I'm even more confused. She does appear to understand that the $$ aren't there.

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Tecate, even incompetents that do have money can/will say that they don't.

Perhaps others can weigh in on whether wanting to go home = incompetence. I doubt it. In fact, I think most will agree that wanting to go home is quite sane.

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I will disagree. Unless the incompetent is at a stage where he/she doesn't know his/her surroundings, the incompetents want to go home regardless of whether being home alone is safe. Incompetents don't understand that they cannot take care of themselves putting themselves in danger. They just want to be in their own home surrounded with their belongings that are comforting to them.

She thinks everything will be ok, and you don't. No one has convinced her otherwise, so she will need to find out one way or the other for herself. Instead of insisting on doing things your way, use reverse psychology: figure out a way to do things her way that will prove you (or her) right sooner, rather than later.

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This is good, tecate. Hopefully, the mom will be proved wrong to herself while she is at the ALF.

One of my wards was being discharged from a nursing home. She couldn't go home as it was not safe for her to be home, so she was placed in an ALF. This ward fooled the entire staff. She answered questions appropriately and could have lucid conversations.

After a couple of months, I realized that the ALF staff didn't realize that this ward had them all duped and spoke with the D.O.N. who told me that she answers questions appropriately. Yes, she does.

But, when you ask the ward what you just asked her or get feedback from the ward to make sure she understood the correct message you told her, she won't know what you are talking about.

The next time I saw the D.O.N., she told me that I was right about the ward having them all duped. The D.O.N was having a staff meeting to "cue" them all in.