Thursday, March 31, 2011

Planning for Incapacity

When you think of your will or your living trust, you might only consider how it will be used to divide your estate upon your death. While that is almost always the motivating factor for people to create an estate plan, it is increasingly common for components of your estate plan to be used before your death.

Most estate plans includes powers of attorney in addition to the standard will and trust. Those powers of attorney will be critical to your family if you are ever unable to make financial or medical decisions for yourself. For example, I have a client whose mother became mentally ill and unable to care for herself. The onset of the illness was swift and dramatic. No planning had been completed for my client's mother. My client's father, who had been depending on assets held in his wife's name alone to help pay for his long term care, was suddenly in a very difficult spot. The only option was acquiring a court-approved guardianship and court-approved distributions from the mother to help take care of him. Guardianships are expensive and are rarely necessary if planning is done correctly and in advance.

Not only do powers of attorney help alleviate problems by appointing agents to make relevant and necessary decisions when the principal is unable, but trusts can effect the same result. If such a provision is desired, a carefully-drafted trust will allow for the chosen trustee(s) to take over the trust assets if the grantor is incapacitated. If and when the grantor returns to full capacity, he or she will reacquire full control of the trust assets.

When considering or reconsidering your estate planning, don't overlook the forest of post and pre-death planning for the trees of distribution to your heirs.

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