Silicon Valley Estate Planning Journal

News and Articles from the Law Offices of John C. Martin

Planning For Incapacity and Long-Term Care

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Planning For
Incapacity and Long-Term Care

With people living longer due to advances in medicine and
changes in lifestyle, odds are that most of us will become disabled for some
time before we die and may need long-term care. Unfortunately, too few plan for
an event that is more likely to be a probability than a possibility—and the
consequences of not planning can be disastrous for all involved.

When someone owns assets in
his/her name and becomes unable to manage financial affairs due to mental or
physical incapacity, only a court appointee can sign for the disabled person.
This is true even if the person has a will, because a will can only go into
effect after death. With some assets, especially real estate, all owners must
sign to sell or refinance. So, for example, if a married couple owns their
assets jointly, one of them becomes disabled and an asset needs to be sold or
refinanced, the well spouse will have to go through the probate court in order
for that to happen.

This is called a “living
probate” because it is similar to the probate process at death but the person
is still alive. It can be costly, time consuming and cumbersome with annual
accountings, bonds, reports, ongoing determinations of incapacity/incompetency,
and fees for attorneys, accountants, doctors and guardians. All costs are paid
from the disabled person’s assets, and all assets and proceedings become part
of the public probate record. A living probate usually lasts until the person
recovers or dies which, depending on his/her age when the disability begins,
can be years.

A fully funded revocable living trust avoids a living
probate. When a living trust is established, the titles of assets are changed
from the individual’s name to the name of the trustee. This is called “funding”
the trust. If the trust has been fully funded (all titles changed) and the
person becomes unable to conduct business, there is no reason for a living
probate because the disabled person does not own any assets in his/her name.
The successor trustee, hand-picked when the trust is created, can automatically
step in without court interference and manage the disabled person’s financial
affairs—selling or refinancing assets to help pay for his/her care and the care
of loved ones, or keeping the owner’s business going—for as long as needed.

Other necessary documents include:

*    Durable
Limited Power of Attorney,
which allows
the successor trustee to transfer to the trust assets that may have been
overlooked, and to manage assets (like IRAs) that cannot be put into a living
trust;

*    Durable
Power of Attorney for Heath Care
, which gives another person legal
authority to make health care decisions (including life and death decisions) if
you are unable to make them for yourself.

*    HIPPA
Affidavits
, which give written consent for doctors to discuss your medical
situation with others, including family members, loved ones and your successor
trustee(s).

Planning for disability may also include disability income
insurance (to help replace lost income), and long term care insurance (to help
cover the costs of care that are not covered by medical insurance). Business
owners may want to consider business or professional overhead insurance that
will pay monthly operating expenses until they recover or the business can be
sold or transferred, and buy-sell agreements in the event a co-owner becomes
permanently disabled.

Disability before death is not always expected and it does
not always happen, but it must be planned for.

 If you have questions or concerns, contact a Menlo Park Estate Planning Attorney today.

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