[WSBAPT] caregiver child scenario

[Sharon Rutberg]

Hello, list mates -

My client is one of three adult children whose elderly mother has needed substantial help with care and arranging care for her. My client gave up a highly compensated professional job and also depleted savings to care for and arrange care for her mother. Upon mom's death, the three children are to receive an equal share of mon's sizable estate, according to the terms of two trusts of which mom is the beneficiary - one revocable and one irrevocable. The other two children, both professionals who have been able to keep working, agree this is not a fair outcome.

There is a significant question whether mom has capacity to amend her revocable trust to provide for a larger share to the caregiver child at mom's death, and the trust forbids her agent under a DPOA from making such an amendment. I have concluded that I should not also represent mom in amending her trust to change the beneficiary structure, due to the potential for a conflict of interest, and that another attorney would need to consult with mom and determine if she has capacity. In an effort to avoid bringing in other attorneys, we have also looked at whether a trustee of the irrevocable trust could distribute principal from that trust to the caregiver child, if the transaction were properly documented. And of course there is the option of having the trusts pay the caregiver child some amount of taxable compensation.

I have explored these questions with a couple of other attorneys so far. My question is this: Have you represented a family member in a similar situation, and what solution(s) did the family come up with? I think this must not be an uncommon situation.

Best,
Sharon

Sharon C. Rutberg, Attorney at Law
Salmon Bay Law Group, PLLC
1734 NW Market St.
Seattle, WA 98107
206-735-3177, ext. 2
sharon at salmonbaylaw.com<mailto:sharon at salmonbaylaw.com>
Website: www.salmonbaylaw.com<http://www.salmonbaylaw.com/>
Washington State Bar #47055

NOTICES
The contents of this message and any attachments may be protected by the attorney-client privilege, work product doctrine, and/or other applicable protections. If you are not the intended recipient or have received this message in error, please notify the sender and promptly delete the message. Thank you for your assistance.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20201113/328f3cb0/attachment.html>