How Can I Use a Living Trust to Plan for my Possible Disability?

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One of the most important reasons for having a revocable living trust is to plan for a possible incapacity. With improvements in health care and lifestyle, more people are living longer. With this increase in lifespan, the likelihood of becoming incapacitated some time before death is greater than ever.

The most important part of estate planning for many people is the ability to keep control. Rather than have a judge appoint a conservator and/or guardian to care for you and your possessions, a good estate plan will allow you to name people you choose to see to your personal care and manage your finances.

An important consideration in a living trust design is the mechanism for determining when you are in fact disabled. Many “boilerplate” trust documents provide that you are deemed disabled when a doctor, or maybe two doctors, make such a determination. You may choose to broaden that to specifically include a medical specialist in the area of your disability. Given the option, however, many people prefer having their spouse, adult children, or other loved ones participate in such a critical determination. After all, certain symptoms of incapacity are noticed first by family members, not by your doctors

A living trust can include a “disability panel” comprised of medical professionals as well as a combination of family members or friends. The disability panel may be given authority to make a determination of your disability by unanimous vote, by a majority, or any other method you choose. The disability panel combines clinical medical advice with input from people who love you and understand what you would want if you could speak for yourself. That allows your affairs to be handled privately among the individuals you trust the most.

You can also provide detailed instructions in your living trust providing for your ongoing care when you are incapacitated. For example, you may wish to remain in your home with private duty in-home care for as long as possible. Or, you may wish to provide detailed instructions to provide for your daily routines so that you can continue them during your incapacity.

In addition to your preference on where to live, these instructions may also include such things as the types of foods you prefer to eat, your daily grooming habits, your favorite hobbies and activities, care of your pets, your preference for religious or spiritual practices, and a description of other beneficiaries whom the trustees are authorized to provide for from the trust assets. Taking the time to consider all of these personal wishes and preferences is part of a well-designed estate plan.