Feb 1, 2006 12:00 PM, By Maureen S. Bateman, partner, and Mark W. Smith, senior associate, Holland & Knight LLP, New York

By: By Maureen S. Bateman, partner, and Mark W. Smith, senior associate, Holland & Knight LLP, New York

Any trusts and estates attorney who has been in practice for more than a few years is likely to have dealt with an incapacitated trustee. A common problem is that of a superannuated trustee who is no longer capable of either administering a trust of which he is the sole trustee, or meaningfully participating with his co-trustees in administering a trust of which he is one of several trustees. Similarly, a trustee may be incapacitated by alcoholism or drug addiction, or may suffer from a mental disease such as Alzheimer's.

When such situations arise, it is important to know your local law and any remedies that may be available. But in the final analysis, case law shows us that there is no substitute for skillful drafting of trusts in anticipation of a trustee's possible incapacity, whatever the cause may be.

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