Groucho Marx is the poster child for what can go wrong with estate planning. At the end of his life Groucho was placed under legal guardianship, against his will, by a California Court.

Last year, there was a disagreement over health care decisions for Casey Kasem, the beloved host of “American Top 40”.

How does this happen? How did these famous people, who presumably could afford the best legal counsel, find themselves in a position where others, including judges, were making decisions about what’s best for them? More importantly, how can you make sure that this does not happen to you?

Estate planning is often equated with death planning. But one of the most important reasons for planning is to control what happens during disability or incapacity – often achieved with a revocable living trust. With an increasing lifespan, brought about my medical advances, the likelihood of becoming incapacitated some time before death is greater than ever.
The underlying goal of any estate plan is to maintain control. Rather than have a judge appoint a conservator 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. But before anyone can take over for you, there must be a determination that you are indeed disabled.

Many trust documents provide that you are deemed disabled when a doctor (any physician), or maybe two doctors, make such a determination. This is not ideal. You may choose to broaden that to specifically include your primary care physician (who has known you for years) along with a medical specialist (who is currently treating you for the cause 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.

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