Can a trust be amended by one settler if the other is mentally incapacitated?
2 Answers from Attorneys
depends on the language in the trust, but usually not. The well settlor usually can revoke as to his/her separate property, and possibly as to his/her half interest in community property.
You will need to review carefully the terms of the trust. The trust may provide a method to accomplish what you want. In general, though, the competent spouse can amend or revoke only the portion over which that spouse has ownership rights. That measns your half of the community and your separate property. There are certain circumstances and procedures where court petitions can be used to allow modification, but they are complex and generally require that the amendments be in the best interests of the incapacitated spouse. You really need to engage capable trust counsel to review the document and what you wnat to acompliish, then provide you a fact specific analysis of your position.