Planning for Incapacity With a Living Trust

As we covered in the first part of this series, the likelihood of becoming incapable of taking care of one’s financial affairs at some point in life is fairly high. Having already discussed incapacity planning vis a vis a power of attorney, we now turn to a more sophisticated method of planning for incapacity, the living trust. When clients step into our NY based Queens or Brooklyn offices, they walk out with a clear concept of the pros and cons of a living trust. In each situation, it is best to consult with an estate lawyer.

The idea of a living trust is rather simple: have a trusted person, a trustee, manage your assets on your behalf when you can’t. You, the grantor, would establish a trust while you are alive (i.e. a living trust). The trust can either be revocable or irrevocable. Revocable means you have the option to “undo” it, while irrevocable means that it generally can not be “undone”. Revocable trusts are more commonly used to avoid probate while irrevocable trusts can also be used avoid probate while at the same time sheltering assets from Medicaid and providing estate tax benefits.

The trustee, whom you will appoint in consultation with your estate planning attorney, will be responsible for administering any assets that the trust owns. Therefore, ownership of any asset that you would want the trustee to manage would need to be transferred to the trustee of the trust. This needs to be accomplished by preparing new deeds, re-titling accounts, etc. Only those assets which are properly transferred to the trustee can be managed by him/her. In New York City, including Brooklyn and Queens, the recording of a deed is accomplished by filing the deed and ACRIS documents with the county register in the county where the property is located.

While you may be the initial trustee of your living trust and manage the assets you see fit, if you become incapacitated the trust will have a provision which allows a substitute trustee to manage your affairs for the duration of your incapacity. This will allow the relatively smooth transition from you managing your money to your trustee managing it on your behalf. Had the assets been held solely in your name at your incapacity, a guardianship proceed would need to be brought before the court to allow a guardian to manage your assets. Certain assets, such as actively traded securities and investment real estate can not wait months to be managed. Any delay can cause a tremendous and irreversible loss of value. This time consuming and expensive process can be obviated through the use of trusts, leaving no gap in management.

For your protection, the trust document should list the criteria which will determine incapacity, such as a letter from your treating physician, or from two independent doctors, before a trustee can act in your stead. If you regain capacity, the trust should be drafted to allow you to resume acting as trustee.

It is best to have both a power of attorney and a living trust, as certain assets may not be funded into the trust and will require a power of attorney or guardianship proceeding. The advantage of a trust over a power of attorney is that since you are transferring ownership of the assets to the trust directly, the institution will not require the typical verification that an agent under a power of attorney will have to provide. And even though institutions are obligated under the NY GOL to accept validly drafted and executed short form powers of attorneys, many insist on using their own forms and routinely reject the short form. With a properly funded trust, you are not at the mercy of each individual institution’s legal department. Additionally, for an institution to validate a power of attorney through their legal department may take weeks, causing potentially irreparable harm to assets in need of management. However, both a trust and a power of attorney are preferable to guardianship proceedings which take months and thousands of dollars in legal fees.

The Law Office of Roman Aminov, based in Flushing, Queens, with satellite offices in Brooklyn, New York, is a full service estate planning law firm concentrating in elder law, probate, Medicaid planning, and power of attorney services. Contact us today for a free consultation at 347-766-2685.

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