Trust Benefits for Incapacity

Who will take care of you in the event that you suffer from a physical or mental disability?

Herman and his wife Wendy have been married for 28 years. Recently, Herman’s father, Doug, suffered a stroke which leaves Doug incapable of caring for himself or making decisions on his own. Although Herman and Wendy persuaded Doug to get a Will many years ago following his wife Mary’s death, they did not foresee Doug’s incapacity problems because, until recently, Doug’s health and mental capacity was phenomenal for a 75-year old.

Doug may very well live another 10 years or more as his problems progress. Doug’s Will is only operative upon his death, so this document does nothing to assist Herman and Wendy with Doug’s care during Doug’s life. What will most likely need to happen is that Herman will have to hire an attorney to set up a “Conservatorship” for Doug. This is the process whereby the court determines that an individual is incapacitated and that a “Conservator” should be appointed to deal with the finances and care of the incapacitated person. As you can imagine, this is a costly and timely process. However, only after receiving this authority from the court could Herman proceed to access his father’s accounts to pay bills and other expenses. (Note: This process could also be complicated in the event that Doug has numerous children all claiming to be the best person to care for Doug personally and financially).

1. One of the lesser discussed benefits of a revocable living Trust is in dealing with incapacity issues. The Trust is convenient in that all of the assets in the Trust are controlled by the Trustee. In the event an individual becomes ill or incapacitated, the Successor Trustee can step in and take over control of the assets for the benefit of the person who set up the Trust.Here, let’s assume Doug initially set up a Trust naming himself as Trustee. Doug would decide at the outset who should take over as Trustee in the event Doug was ill or otherwise incapacitated. This Successor Trustee would then be able to step in and take over control of the Trust assets for Doug’s benefit once two qualified physicians determined that Doug could no longer act as Trustee. This Successor Trustee could be Herman or anyone Doug felt would best serve his interests. This conveniently allows Herman to begin acting as Trustee in order to care for Doug quickly without the need for an expensive Conservatorship proceeding.
2. Another benefit of planning early is that now Doug has a Durable Power of Attorney for Health Care that explains his wishes regarding life support, disposition of remains, donation of organs, etc. In this way, Doug is assured that his wishes are known because he signed a document while possessing a sound mind. This document would allow Doug to name an agent to be sure that his wishes were carried out in the event he could not make the choice himself.
3. Finally, a Durable Power of Attorney for Financial Matters would allow Herman to step in on Doug’s behalf and deal with any retirement plan proceeds payable to Doug. (Contrary to popular belief, not everything is transferred into your Trust and so a Durable Power of Attorney for Financial Matters gives Herman the authority to assist Doug with things such as retirement proceeds and the filing of tax returns). A Durable Power of Attorney for Financial Matters would allow checks payable to Doug to be cashed by Herman to cover Doug’s bills and medical expenses.

(Reminder: Following Doug’s incapacity, any Powers of Attorney for Health Care or Financial Matters signed by Doug would have tenuous authority because of the reality that an incapacitated individual likely cannot validly sign such documents).

This scenario differs from the others in that it references the benefits of having a revocable living Trust during your lifetime. Remember, with medical advances keeping individuals alive longer even when mental functioning is limited, it is important to consider the benefits of planning in case you later become incapacitated. Additionally, the transfer benefits usually associated with a Trust would also apply here. Even though Doug’s assets were not listed above, it should be noted that a properly funded Trust would eliminate any probate costs and eventually ease the transfer of property from Doug to his beneficiaries.