A parent starts to slip. One child holds the power of attorney. Another child shows up, has the parent sign new papers, and moves her across the country to live in the spare bedroom. The rest of the family is left asking whether Mom even understood what she signed, and whether she understood that she was moving.
Those are capacity questions, and they come up in nearly every family fight over trusts, powers of attorney, and guardianship. But capacity is not one thing. The law asks different questions depending on what the person is trying to do. Signing a complicated financial document takes more understanding than deciding where to live. So can a parent whose doctors say she cannot make her own financial or medical decisions still choose a new home state?
A federal court in Ohio answered that question in Checcone v. Checcone, Case No. 4:26-cv-272 (N.D. Ohio Aug. 13, 2026). The court had to decide whether an elderly mother with documented dementia had the capacity to make Washington her new legal home, and then whether one of her sons had to agree before the family’s trust fight could be moved out of probate court and into federal court.
What Happened in the Checcone Family?
In 1990, Albert and Iole Checcone set up two revocable trusts as part of their estate plan: the Albert G. Checcone Trust and the Iole C. Checcone Trust. They funded both trusts equally through accounts at Merrill Lynch. They had three children: Emidio, Mark, and Anne Marie. Emidio was co-trustee of his father’s trust while Albert was alive, and he was and remains co-trustee of his mother’s trust. All three children are remainder beneficiaries of Iole’s trust.
On March 20, 2023, Albert and Iole signed powers of attorney naming Emidio as their agent. Around that time, according to Emidio, Iole’s mental health had declined to the point that her doctors said she could not make independent medical, financial, or legal decisions.
Emidio alleged that in December 2024, without his knowledge, Anne Marie visited their parents and convinced them to sign new springing powers of attorney naming her as agent instead. (A springing power of attorney only takes effect when a triggering event happens, usually a doctor’s certification that the person is incapacitated.) Anne Marie also had Iole sign a medical power of attorney naming her. Emidio claimed Iole had severe dementia and could not have understood either document, and that both were the product of undue influence or fraud.
In January 2025, Merrill Lynch rejected the new power of attorney because it was a springing document and nobody had certified Iole’s incapacity. A Merrill Lynch employee then visited the parents in February 2025 and had them sign Merrill’s own power of attorney forms. Emidio alleged that Anne Marie then had Merrill close Albert’s individually titled CDs and move the money into the trust accounts, without telling Emidio, who was co-trustee of both trusts.
Albert died on May 20, 2025. Emidio alleged that Anne Marie then went to Iole’s doctors for a written certification of incompetency so the springing documents would take effect. In June 2025, Anne Marie moved Iole from Ohio to her own home in Seattle. Mark and Anne Marie had been nominated to take over as co-trustees of Albert’s trust, but only Mark formally accepted. Since his father’s death, Emidio has not been able to get information about the trust’s assets and accounts.
Emidio sued in the Probate Court of Mahoning County, Ohio. He asked the court to sort out the trusts, the contested powers of attorney, and each family member’s role. Iole then removed the case to federal court on the ground that the parties were citizens of different states. Emidio asked the federal court to send the case back to probate court. Two issues came out of that fight: (1) where Iole now lives for legal purposes, and (2) whether Mark had to agree to the move to federal court.
Why Does a Parent’s Legal Home Matter?
To understand the capacity issue, we first have to look at how federal courts decide who is a citizen of which state. A federal court can hear a state-law case like this one only if no plaintiff lives in the same state as any defendant and more than $75,000 is at stake. 28 U.S.C. § 1332. For a person, citizenship means domicile, which is their true legal home.
You establish a domicile by being physically present in a state and intending to stay there. As the court put it, quoting the Sixth Circuit, a person “must be physically present in the state and must have either the intention to make his home there indefinitely or the absence of an intention to make his home elsewhere.” You keep your old domicile until you establish a new one. Taking a long trip does not change your domicile. Moving with no plan to return does.
That is where capacity comes in. The rule requires intent, and intent requires a mind capable of forming it. When someone has been declared incompetent by a court, the general rule is that they keep the domicile they had before they lost capacity. The court quoted the leading federal procedure treatise on this point: “the incompetent’s last-acquired domicile prior to the onset of the incapacity is preserved until that person again has the capacity to make a reasoned decision as to where [s]he desires to live.”
Texas guardianship law draws the same line between choosing a home and handling everything else. The Texas Estates Code defines an incapacitated adult as one who, because of a physical or mental condition, is “substantially unable to” provide food, clothing, or shelter for themselves, care for their own physical health, or manage their own financial affairs. Tex. Est. Code § 1002.017. But a Texas court does not treat incapacity as all or nothing. If the court finds that a person lacks capacity to do only some tasks, its findings “must specifically state whether the proposed ward lacks the capacity, or lacks sufficient capacity with supports and services, to make personal decisions regarding residence, voting, operating a motor vehicle, and marriage.” Tex. Est. Code § 1101.101(c).
The doctor’s role is set by statute too. Before a Texas court can create a guardianship for an adult, the applicant generally has to file a letter or certificate from a physician or psychologist, based on an exam done no more than 120 days before the application is filed. Tex. Est. Code § 1101.103(a), (a-2). A physician’s letter must describe any functional deficits in the person’s ability to handle money, consent to medical treatment, and “make personal decisions regarding residence, voting, and marriage.” Tex. Est. Code § 1101.103(b)(1). In other words, Texas law expects a doctor to separately address whether a person can decide where to live. And the doctor’s letter is evidence. It is not the court’s ruling.
How the Court Decided Iole Could Choose Washington
The parties agreed that Emidio was a California citizen, Mark a Florida citizen, and Anne Marie a Washington citizen. Iole was an Ohio citizen until June 2025. Emidio argued she did not have the capacity to make Washington her new home. He also pointed out that he and Mark were both willing to house and care for her, and that Anne Marie moved her without telling either of them. Iole responded that she moved into her daughter’s home with no intention of going back to Ohio, and that no court had ever declared her incompetent.
The court first noted that it did not really need to decide the question. Whether Iole lived in Ohio or Washington, nobody shared a state with Emidio in California, so the parties were diverse either way. But the court went on to agree with Iole anyway, and its reasoning is the useful part.
The presumption that an incompetent person cannot pick a new domicile applies to someone a court has adjudged incompetent. Even then, the bar is low. The court quoted the Third Circuit in Juvelis by Juvelis v. Snider, 68 F.3d 648 (3d Cir. 1995): “The actual mental capacity required for selection of a domicil[e] of choice has been held to be much less than that required generally for the management of an individual’s affairs.” And it quoted the Tenth Circuit in Coppedge v. Clinton, 72 F.2d 531 (10th Cir. 1934): “It is sufficient if [s]he understands the nature and effect of [her] act.” Following Long v. Sasser, 91 F.3d 645 (4th Cir. 1996), the court said the party claiming the person had enough capacity to change domicile carries the burden of proving it.
Iole carried that burden. Her doctors may have certified that she could not make independent medical and legal decisions, but “no court has adjudged Iole to be incompetent.” She also had concrete evidence that she understood what she was doing. After Albert’s death, she appeared before an Ohio probate magistrate and successfully filed an election to take against her husband’s will. (A surviving spouse’s election lets her reject what the will gave her and take a share set by statute instead.) Based mainly on that filing, the court found Iole understood the nature and consequences of moving to Washington and making it her home.
The court was careful about the limits of that ruling. In a footnote, it said it made no findings about when the doctors’ certifications occurred, and that its domicile ruling should not be read as a decision on whether Iole is incompetent under the terms of her trust. That question stays with the probate court.
Even with diversity established, the case still went back to probate court. Under the federal removal statute, every defendant who has been served must join in or consent to removal. “Failure to obtain unanimous consent forecloses the opportunity for removal.” Mark never consented, so Iole and Anne Marie asked the court to treat him as a plaintiff. They pointed out that Mark’s answer asked the court to rule for Emidio on every claim and that he also wanted the powers of attorney thrown out and Anne Marie removed as co-trustee.
The court said no. Courts “look beyond pleadings, and arrange the parties according to their sides in the dispute.” The main dispute here was how the two trusts should be administered and governed. Iole’s competency, the alleged undue influence, and the moving of trust assets were secondary issues under that umbrella. Mark agreeing with Emidio on those points did not mean they agreed on how the trusts should be managed or how the assets should be allocated between them.
Mark’s role as a fiduciary sealed it. The court relied on Smith v. Nelson, 86 F. Supp. 2d 787 (N.D. Ohio 2000), which held that “[u]nder Ohio law . . . a trustee has a duty to defend the trust property.” As co-trustee of his father’s trust and a remainder beneficiary of his mother’s, Mark had his own duties. That made him, in the court’s words, “not a nominal party but an interested party.” Because his consent was required and never given, the court remanded the whole case to the Mahoning County Probate Court.
The court also flagged a second problem in a footnote. Emidio asked for a declaration of which assets belong to which trust. The court had “serious doubts” that it could grant that relief because of the probate exception, since doing so would likely require a federal court to “elbow its way into a fight over a property” already under the probate court’s control.
The Takeaway
A doctor’s note saying a parent can’t manage her money is not the same as a court ruling that she is incompetent, and neither one automatically means she can’t decide where to live. Checcone shows how low the bar is for that particular decision. If the parent understands that she is moving and means to stay, that may be enough, even when her ability to handle finances and medical care is seriously in doubt.
For families, that has real consequences. If you think a sibling is moving a parent to gain control, waiting does not help. Once the parent has settled in the new state, the move may stick. In Texas, the guardianship process is the tool for getting a court ruling on capacity, and the court’s order has to address the person’s ability to make decisions about residence specifically. Start with a current physician’s letter that addresses each of the areas the statute lists.
The case also shows that co-trustees and beneficiaries are not interchangeable, even when they agree with each other. Each co-trustee owes duties to the trust. A sibling who agrees with you about Mom’s capacity may still disagree with you about the money, and the court will treat them as their own party.
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