The Trustee is the manager of the trust’s assets, and the trusteeship changes on any of the following three events: death, resignation or incapacity. Death is proven by a certified copy of a death certificate. Resignation is proven by the written document of resignation. Incapacity in trusts that I draft is proven by letters from two doctors who have examined the Creator/Trustor.
But doctors are reluctant to write such a letter for someone other than their patient. They are worried that they may be violating their patient’s privacy rights under a federal law called HIPPA. But if the patient has a durable power of attorney for health care, his or her doctors will be more willing to consult with and write a letter (ie. one documenting the patient’s incapacity) for the agent (attorney-in-fact) designated in the health power.
In order for the health power to be recognized, it should contain specific language waiving the patient’s privacy rights under HIPPA. In addition, there is a section of the health power which needs to be separately signed by the patient and which states that the agent’s authority begins immediately. Doctors are less likely to honor a health power which springs into effect upon the patient’s later incapacity, and are more likely to honor a health power which gives the agent authority that is effective immediately upon the signing of the health power.