25 Oct Do I have a right to see my sister’s trust?

Q. My brother has power of attorney for our sister. She presently is suffering from dementia but when it was mild cognitive impairment, he arranged for her to write a will and then he created a trust. Do I as a sibling have the right to ask about the trust and its terms?
— Sibling

A. We’re sorry to hear about your sister’s difficulties.

There are a few things to consider here.

When you say that your brother created a trust, it is not clear whether you mean to say that he also arranged for your sister to sign the trust document or he signed it on her behalf, said Yale Hauptman, an estate planning attorney with Hauptman and Hauptman in Livingston.

He said in order to sign it on her behalf, the power of attorney you referred to must provide your brother with the authority to establish trusts on her behalf.

“Since inter vivos trusts — ones established by the grantor while he or she is alive — are private agreements and not filed with the surrogate, as a will is when it is probated, you do not have a right to see it or learn of its terms unless the trust agreement so provides,” Hauptman said. “You can certainly ask your brother but he very well may refuse.”

You mention that your sister is suffering from dementia.

If you believe that she lacked capacity when she signed the trust document, you could pursue the matter in court, he said. Alternatively, if the power of attorney does not give your brother the power to sign the trust document, you could challenge it on those grounds, he said.

“Without being able to see these documents, however, it makes it impossible to know if either of these scenarios is true, which takes us back to your question,” he said. “While you certainly can ask for a copy of these documents your brother may or may not give them to you.”

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This story was originally published on Oct. 25, 2022.

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