(Warning: Typos Intact, Not Legal Advice)

If my mom is incompetent can i have attorney draft up a special trust?

She is in care under guardianship my brother in Hospital

Answer: When a person becomes mentally or legally incompetent and has not planned ahead, the only path forward is often through probate court. It sounds like your brother has gone to probate court and obtained guardianship over your mother. At this point, your mother is not capable of signing a trust or taking any other legal action on her own. All such actions must now be handled through the guardian, who is your brother.

If you wish to support your mother financially, you can set up a third-party trust for her benefit. You can create a trust on your own behalf and designate it for her care. However, this may not be necessary since you can use your own funds to support your mother whenever you choose.

The bottom line is that your mother cannot sign a will, power of attorney, or trust as long as she is under court-appointed guardianship, because she is legally incapacitated.

If you believe a loved one is on the path to incapacity, it’s crucial to consult with an attorney before it’s too late. Taking action early can help avoid the need for probate court, which often leads to disappointing outcomes for families. Acting sooner can ensure that your loved one’s wishes are met and avoid the complications of probate.