Incapacity is an increasing concern in the lives of most people. Besides insurance, what safety nets should you consider to prepare for the possibility of being incapacitated? A will can only help your family after you've passed away, but a trust can help them through incapacity and death. This double duty is making trusts a popular alternative for many

If you have a will, you have provided for your death, but not incapacity. The legal solution for a person who is incapacitated and does not have a trust is called a guardianship. In a guardianship, the court appoints a lawyer to become the guardian of your property. All decisions about how and when assets are used become the domain of this court appointed attorney.

All decisions about how and when assets are used become the domain of the court who is in control. In other words, you're alive, but the court is in control of your care, your assets, and even your spouse or child guardian.

People who have experienced this process know that it is expensive and trying. For example, when one young woman's father became incapacitated with dementia, she became responsible for his well-being. However, that responsibility did not allow her control of his assets.

For every dollar she needed to set up care for her father, she had to go through the court-appointed guardianship/attorney. The attorneys in these matters do not work for free. It was costly to make arrangements and to make necessary changes to the arrangements later; because, it all had to go throught the attorney and the courts.

As an added emotional burden, the woman felt frustrated that she could not carry out her father's wishes without the guardianship's intervention. The guardianship had the last word on all of their decisions and they were billed for his intervention.

Could this have been avoided? Yes, with a trust, you can avoid the guardianship process should you become incapacitated. The trust is set up to act according to your wishes when you are no longer able to: either in death or incapacity. There is no guardianship of trusts. The trust simply continues to operate with or without you -- but for you.

With a trust, your successor trustee uses your assets as per your instructions for your exclusive care, should you become incapacitated. This provision found in trusts keeps the courts from "guarding" your assets. You remain in control until incapacitated and thereafter through your instructions.

Robert Focke and Associates offers free initial consultation on estate planning, so that you can understand your options. Please contact our offices at 713.850.7799.