Mental Disabilty Planning Often Not a Goal of Estate Planning
Many attorneys seem to assume that the primary goals of estate planning are to avoid probate and to avoid estate taxes. That's the message clients get when they attend estate planning seminars. "If you just sign a trust instead of a will, then you can avoid probate and estate taxes."
While it is true that avoiding probate and estate taxes are reasonable goals, they certainly are not the only goals worthy of being planned for. For instance, one very important goal of estate planning might be planning for the possible future mental disability of the trustmaker. Clients want to not only control their property while they are alive and well, but also assert some control over how their property will be used to care for them if they become disabled.
Including Mental Disability Planning
Many clients are not aware (likely because they have never been given the option by estate planning attorneys) that instructions can be included in a trust to define mental disability, describe the process of how the trustmaker will be determined to be disabled, and include the priorities and desires of how the trustmaker wants to be cared for while disabled.
Choosing a Disability Panel
The Trustmaker can list what members he wants to place on a "disability panel" that will make a determination of disability if necessary. This panel could include, for instance, the trustmaker's primary care physician, an appropriate specialist recommended by the doctor and approved by the spouse, the spouse, adult children, etc. The trustmaker decides whether the panel's decision must be unanimous, or by a majority vote.
Adding Personalized Instructions
Next, the trustmaker can determine in what priority his trust funds are to be used; for his care, the care of his wife, the care of his children, or perhaps the care of an elderly parent. The trustmaker can also include detailed instructions regarding continued access to favorite movies, magazines, club memberships, etc.
Setting up these disability instructions as a part of the trust can help avoid the need for court-supervised guardianship or conservatorship proceedings, which can be expensive and intrusive. Disability plans within an estate plan can be private and much less expensive.
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