Many people remember Groucho Marx, particularly his
movies and his wit. What most may not know is that at
the end of his life he was placed under legal
guardianship, against his will, by a California Court.
To make matters worse, after an intense and expensive
court battle, the judge appointed a relative to act as
Marx’s guardian. Not that unusual, except in this famous
case, the relative in charge was someone Marx reportedly
So how does this happen. How did Groucho find himself
in a position where others were making decisions about
what and who would be good for him. More importantly, how
can you make sure that this does not happen to you?
Estate planning is often related with the idea of
planning for death. But one of the most important reasons
for having a revocable living trust is to plan for
disability or 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 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
Many 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
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.
To determine what type
of planning is best for your unique family’s needs, it is
best to consult with an estate planning attorney to review
If this type of planning is
interesting to you
here to have our office call to set up a time to
discuss this with you.
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