ABA Family Legal Guide

The Rights of Older Americans

A Right to Control Your Own Affairs

Living Trusts

My father has a lot of money in his estate, but he is becoming increasingly forgetful every week. May he still write a living trust?

Like the durable power of attorney, people must prepare living trusts while they still have the capacity to do so. First of all, your father must want to make a trust. If he does, his lawyer may determine his ability to make a trust agreement. Sometimes, this is done by having him examined by a family physician or perhaps a gerontologist. His lawyer will know what standard of capacity must be proven. If your father does not have that capacity, he cannot make and sign a living trust.