There are two distinct issues, which should not be confused :

• Can you manage your own financial affairs competently?
   
• Can you make decisions affecting your life and health competently?

 

In your estate plan, you can ( and should ) set up your own procedure for determining whether you are incompetent. Unless you plan this way, the only alternative is for a judge to make that decision. This should be avoided at all costs. The legal process for this is called "Conservatorship", and it is frightening, impersonal and very costly. Worse, it is most often made without the judge ever seeing you, on the word of the person who wants to control you and your money.

However, most standard trusts do not protect you or your assets from this unwanted deprivation of your liberty and property. The estate plans prepared by McINTIRE LAW CORPORATION incorporate such protection.

• A. First, in your Trust, you name the persons who will decide whether you are competent. These are persons who know you, know your idiosyncracies, and whom you trust to make that decision out of love for you, and not because of some personal benefit to themselves.
   
• B. Then, in your trust, you name the person who is to replace you as trustee if those persons decide that you cannot manage your affairs.
   
• C. Finally, in your trust, you provide specific directions as to how your trustee is to spend your money to provide you with the quality of life you desire, and what the trustee cannot do with your money or property.

Without planning, someone else uses your money as they see fit, including self dealing, regardless of your wishes. With planning, you can require that your money is used to give you the quality of life you desire. Most estate plans ignore this aspect entirely. At McINTIRE LAW CORPORATION, we pay attention to it.

A. Where will you live during your disability?

• In your trust, you tell your trustee where you wish to live ( for example, "In my own home"), whether part time or live in help is acceptable to you, and under what circumstances, if any, you consent to be moved somewhere else.
   
• If you consent to move from your home, you instruct the trustee what alternatives are acceptable to you, and in what order (for example, living with an adult child or sibling). You instruct the trustee under what circumstances, if any, you agree to live in institutional setting such as a retirement home, convalescent home, assisted living facility or rest home, and you can name the place or set the criteria for the kind of place in which you will live.
   
• After giving these instructions, you instruct your trustee to use your money and property to fulfill these desires.

B. How will you live during your disability?

• In your trust, you give your trustee detailed information about what types of activities you wish to engage in, to the extent you are physically and mentally able. These include family events, involvement in the lives of your children and grandchildren, spiritual growth, hobbies, outdoor and indoor activities, television interests, taste in reading and music, and everything else that is important to you and that makes your life pleasant, joyful and full.
   
• Then, you instruct your trustee to use your money and property to make these things happen, regardless of where you are living.

C. How do you provide for those who are dependant on your care if you are disabled?

• In your trust, you instruct your trustee how to provide care for the persons you now care for, in the event that you cannot care for them because of your disability. These can include an elderly parent, minor children, a dependent spouse or a disabled adult child.
   
• Your instructions can include how your money and assets are to be used to provide:
   
  • The care you desire for them,
     
  • Their living conditions, and
     
  • The quality of life which you desire to provide for them.

III.  GETTING STARTED

To begin planning for your disability, consider the following:

(Mental incompetence may be temporary, as resulting from an accident, illness or stroke. It may be permanent, or it may be of slight decree, with minimum interference with your activities or enjoyment of life, or it may impair your ability to engage in some activities which you now enjoy. You should plan for all of these circumstances.)

• Who do you trust to decide whether you are no longer competent to manage your own affairs?  This may be only one person. We suggest a panel of three or more. Each person should be a person who will make the decision solely out of love for you and what is best for you, without a personal agenda.
   
• If your panel determines that you are no longer capable of managing your affairs, who do you want to "stand in" for you? (This is your trustee during your disability.) We suggest you name at least two, and preferably three, alternatives to cover the situation when your first choice may not be able or willing to so act.
   
• If you are unable to make medical decisions for yourself, who do you designate as the person to make those decisions for you? We suggest at least two alternatives.
   
• If you require a guardian ( a person to attend to your personal care and comfort during disability), who do you want to do that? If possible, name two alternatives.
   
• If you are incompetent to manage your own affairs, list the activities and things which now give you enjoyment and which you wish to continue enjoying during your disability, to the extent that you are physically and mentally able to do so. (Examples may be fishing, boating, sewing, socializing, eating out, involvement in church affairs, reading, certain television programs, gardening, working in shop, playing musical instruments, and the like.) This should especially address your spiritual or religious practices.
   
• If you become incompetent to manage your affairs, where do you want to live? Under what circumstances would you agree to be relocated from there? If you had to be relocated, where do you prefer to live? With whom? What are your wishes regarding institutional care?

[Healthcare Planning-Advance Directive] [Protecting Yourself During Your Disability] [Protecting your Loved Ones after Death] [Providing for your Minor Children]