This is your guide to proper disability planning, which is an important part of every estate plan. Guardianship or conservatorship can be avoided by creating Advance Medical Directives, Powers of Attorney and Revocable Living Trusts. Choosing your agents to act on your behalf under these documents is made easy with a few simple guidelines.
Guardianship, or conservatorship as it's called in some states, is the legal proceeding in a state court where a person, called the “Guardian” or “Conservator,” is appointed to exercise some or all of the legal rights of the incapacitated person, called the “Ward.”
There are a variety of ways to avoid having you and your assets placed in a court-supervised guardianship or conservatorship if you become mentally incapacitated. Some will work in certain situations but not in others.
After a person has been determined to be mentally incapacitated and a guardianship or conservatorship is established by the court, or if a minor is in need of a guardianship or conservatorship, the guardian or conservator appointed by the court will have numerous duties and responsibilities with regard to taking care of all of the ward's needs.
Once a person has been determined to be mentally incapacitated and the court establishes a guardianship or conservatorship, various fees and costs will be incurred on behalf of the ward. In fact, guardianship or conservatorship is a costly business.
Planning for mental disability to avoid guardianship or conservatorship should be an integral part of every estate plan. There are two important aspects of mental disability planning: deciding who will take care of your personal well being and deciding who will take care of your finances.
There are basically three types of legal documents necessary to plan for mental disability: Advance Medical Directives, including Living Wills, Powers of Attorney, and Revocable Living Trusts.
Even if you're young and healthy, an unforeseen accident or sudden illness can devastate your loved ones both emotionally and financially. Having the right documents in place to deal with a medical emergency is a must for everyone, particularly if you're married or in a committed relationship and/or have young children.
A Revocable Living Trust is a legal document that is created by an individual, called a Trustmaker, to hold and own the Trustmaker's assets, which are in turn invested and spent for the benefit of the Trustmaker by an individual or institution called the Trustee.
Another common and simple way to avoid a court supervised guardianship or conservatorship if you become mentally incapacitated is to establish and fund a Revocable Living Trust.
In setting up your Revocable Living Trust, you'll be asked to name a Disability Trustee to administer your trust in the event you become mentally incapacitated. Learn what a Disability Trustee is required to do when administering your trust during your incapacity.
Serving as the successor Trustee of a Revocable Living Trust, whether due to the Trustmaker's disability or death, is a huge responsibility and time consuming burden, but with the help of your estate planning attorney you should be able to choose the right person or institution for the job. Here are the qualities you should look for in your successor Trustee.
Planning for medical emergencies should be made a part of every estate plan. The legal document necessary to plan for a medical emergency is called an Advance Medical Directive and the legal document that allows you to state your wishes if you suffer from a terminal illness is called a Living Will.
In setting up your estate plan, you'll be asked to name a number of fiduciaries to act on your behalf in various situations. One such fiduciary will be your "health care agent" named in your Advance Medical Directive.
A Power of Attorney allows you to delegate your right to manage, invest, and spend assets held in your individual name to someone else, called your "attorney in fact."
In setting up your estate plan, you'll be asked to name a number of fiduciaries to act on your behalf in various situations. One such fiduciary will be your "attorney in fact" named in your Power of Attorney. In addition to selecting your first choice, you should also name one or more backups just in case your first choice isn't available to serve.
