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The Plain English Attorney

Not everyone is always honest. This is an unfortunate fact of life. But betrayal by a close friend or family member is all the more painful. The story of Danny Tate is not a pleasant one, but it illustrates an important but often understated benefit of having a good revocable living trust.

Danny is a musician in Tennessee who was involved in drugs, and when he decided to seek treatment he signed a power of attorney appointing his brother David Tate as his agent to make sure his bills were paid while he was in rehab. This was in October of 2007. However, in recent months, long after Danny left rehab and got his life in order, his brother went to a probate judge claiming his brother was worse than ever. With power of attorney document in hand but without any notice, without any witnesses, and without any proof other than the brother’s claims, Danny had his whole life taken away. The judge ordered all of Danny’s assets seized and put under his brother’s control in a conservatorship. (As we call it, living probate.) Of course, one of the first things done was David went to an attorney and gave him a $25,000 retainer to assist him in making sure Danny did not gain back control of his assets.

Danny could not find an attorney of his own to help because he had no money to pay them since his checking account was taken away. He went to court with a neighbor who was an attorney but had no experience in this area just to ask for a continuance in the full competency hearing so they could find a lawyer, but the judge turned him down flat. The “expert” David and his attorney used was a pediatrician with no experience in assessing competency based on drug use. And the judge upheld his previous order having David keep complete control of his brother’s assets. It took a huge Facebook and media campaign to “Free Danny Tate,” including about a dozen people showing up at a hearing with that slogan on their T-Shirts for the court to even partially relent and allow Danny to use some of his own money to hire his own attorney to fight for him. (See

Unfortunately, this is more common than we would like to think, and not everyone can get a few thousand Facebook fans to lend their support in regaining control. In fact, this happens far more often with aging widows and widowers when the children want Mom or Dad to go to an assisted living facility even if their parent is not ready. But taking the right planning steps can ensure that this does not happen.

But what are the right planning steps? First, having a weakened power of attorney is not the answer. Making sure you trust the person acting as your power of attorney agent is. Second, having the right revocable living trust in place is far more important. A revocable living trust holds title to most of your assets during life, and the terms of the trust govern whether or not you are considered “incompetent” and need the successor trustee to step in.

The Revocable Living Trust documents our firm uses are very clear on this matter. At least two physicians who have actually examined you are required to declare you unable to manage your own trust before you can lose control. At the same time, you can employ two other attending physicians to declare you competent to regain control of the trust, and the people (usually the misguided children) are now prohibited from removing you as trustee for a period of six months. Of course, in the meantime, it is probably time to take the children out as successor trustees.

The main point here is that even if there is a David Tate-type person as your power of attorney agent and even if they do get to a judge who will strip you of your ability to manage your “individual” assets, you still have your trust assets which should be the bulk of what you own, and now you can fight your David Tate person while not being left destitute.

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