If you have created a trust to protect your estate for your family when you pass on, typically you maintain a certain control over it. However, what happens if you become incapacitated? If you become unable to take care of yourself or make decisions, the courts may appoint a guardian to look over you and your affairs. Yet, how much power does this guardian have? If they so choose, can they remove a trustee and take control of your trust or award it to someone else without your approval?
The answer to that varies depending on the unique circumstances of the case. In some cases, your guardian does have that power, but they need to go to court to get it. If your previous trustee has passed away and your successor trustee is about to be appointed, your guardian may be able to step in and say no. Your successor trustee doesn’t even need to be exhibiting suspicious behavior. If their mental capacity or ability to effectively manage the trust is called into question, the courts may grant the right to guardian to appoint another as long as it is in the best interests of their ward.
However, if a trustee has long taken care of a trust, has been doing so legally and successfully, and is as stable in mind as they always have been, there is very little chance that the guardian can remove them. All a guardian needs to do is plead their case for a new trustee in court, but the court will only allow a trustee to be removed by a guardian if the trustee is somehow detrimental to the ward or their estate.
If you are a guardian of the estate and suspect wrongdoing to your ward’s trust on behalf of a trustee, contact us today. As a guardian, it may not seem like your place to step in, but you were appointed to care for your ward and their interests. Making sure a trust is well run is definitely well within their interests.