A standard estate plan can be insufficient for someone who suffers from a potentially incapacitating chronic illness or disability. But when drafting a customized plan, you may be concerned about possible loss of control. How to make sure that you maintain as much control as possible…
If you have a chronic illness or disability, your living will should be more specific than the standard document. A living will lays out your health-care wishes in case you become unable to express them. Before having it drafted, discuss with your doctors the treatment issues and options that could arise. Decide how you would like each of these situations handled, and detail these decisions in this document.
Example: Some chronic conditions bring considerable pain as they progress. Do you want pain relief if it could impair your ability to think clearly even more than the pain does?
Another document, your health-care proxy, names someone to make health-care-related decisions on your behalf when you cannot do so. If you have a chronic health problem or disability, this person should be someone well-informed about your particular condition or willing to become well-informed. Your agent might be called upon to make decisions for you fairly regularly, so this should be someone who lives nearby. If you wish to try experimental treatments that offer hope of curing your condition or improving your life, instruct your estate-planning attorney to note this desire in your health-care proxy (as well as in your living will).
If you have a condition such as chronic obstructive pulmonary disorder or multiple sclerosis that subjects you to chronic disabling attacks from which you later rebound, you might not wish to hand over total control of your affairs with each attack. Instead, ask your attorney to create an immediate limited power of attorney that grants your agent the power to pay bills and deal with emergencies when you become incapacitated but that hands over power to take larger steps—such as selling your home or restructuring your investments—only if you are incapacitated for more than some predetermined period of time. Caution: Some states do not permit this.
A revocable living trust allows you to put assets in a trust that you continue to control until you die, at which point a “successor trustee” takes over. This allows the estate to avoid costly court proceedings known as probate. If you have a chronic illness or disability, raise the following topics with your attorney…
Co-trustees. For chronically ill or disabled people, in addition to naming yourself as the initial trustee, it might make sense also to name a financially savvy family member or close friend you trust as co-trustee. He then could be authorized to step in and manage trust assets when your health condition renders you temporarily or permanently unable to.
Disability clauses. Ask your attorney to review the disability clause in your revocable living trust to confirm that it is appropriate for someone with your health condition. This clause hands power over the trust to the co-trustee or some other designated alternate should you become disabled. If you already are disabled—or have a condition that’s likely to leave you increasingly disabled as time passes—the clause should be phrased in a way that leaves you in control of your assets for as long as possible and does not permanently remove you as a trustee if you are temporarily disabled.
