There are two situations where a disability trust (individual or pooled) must be created by a Conservator:

1. If the beneficiary already has a Conservator, the trust will have to be established by the conservator.

2. If the person does not have a Conservator, but—

  • (a) he or she is not competent to sign a legal agreement; and 
  • (b) he or she has no Durable Power of Attorney, or
  • (c) he or she does have a Durable Power of Attorney, but it does not give the Agent the right powers to establish a trust (as determined by Community Trust),
    then a Conservator will have to be appointed in order to create the trust.

If there is a Durable Power of Attorney with inadequate powers (situation 2(c), above), Community Trust usually will accept the trust, on condition that a Petition is filed promptly to obtain a Conservator with expanded authority to create the trust retroactively (“nunc pro tunc”) to the date that we accepted it.  No distributions can be allowed until the Conservator has ratified the trust in this manner.

A Conservator must obtain a Decree of Expanded Authority from the Probate Court in order to create a trust for the individual.  This requires a petition, notice, appointment and report of a guardian ad litem, and a hearing.  Unless the proposed Conservator is a lawyer, he or she will need to hire a lawyer for this process.

Probate Courts usually approve these petitions.  Many trusts with Community Trust are established by Conservators.  Please contact Community Trust if you have questions about this process or requirement.

A Conservator must obtain a Decree of Expanded Authority from the Probate Court in order to create a trust for the individual.  This requires a petition, notice, appointment and report of a guardian ad litem, and a hearing.  Unless the proposed Conservator is a lawyer, he or she will need to hire a lawyer for this process.

Probate Courts usually approve these petitions.  Many trusts with Community Trust are established by Conservators.  Please contact Community Trust if you have questions about this process or requirement.