your estate plan adequately protect your loved ones should you become disabled?
That is, do your power of attorney and trust instruments authorize your agent
and trustee, respectively, to assist those who depend on you in the manner you would
want were you to become disabled? It is
entirely possible that your legal instruments do not adequately address the
needs of all your loved ones, particularly your adult children. These documents
focus on protecting your needs during your disability. Adjustments are needed if you want to protect
persons such as your adult children who are no longer your legal
responsibility. Let us consider some scenarios that might present a hardship to
the loved ones of a disabled person.
consider a parent whose adult child lives at home and take cares of the parent.
If the parent were hospitalized or placed into a skilled nursing home would
that child still be allowed to live at home while the parent was away and
unable to manage her own affairs? Would
anybody else in the family object to the child staying? Who will pay the
utility bills incurred by the child? If the parent’s plan is that the parent’s
resources are to assist the adult child then the parent’s power of attorney and
trust (as relevant) should specifically authorize the same. Otherwise that
child may find himself in an impossible situation and be forced to leave the
area; even if the parent might prefer the child stay at the home and be close
consider a parent with a special needs child who lives independently in his or
her own home. The special needs child may still depend on the parent for
supplemental financial assistance, personal care, and advocacy regarding to
maintain SSI and Medi-Cal benefits. What will happen to the child if the parent
were to become disabled? Will the parent’s resources still supplement the
child’s benefits? Will the parent’s resources be made available to pay for an
advocate to represent the child before the Social Services Department?
consider a parent supporting an adult child at college. Will the child be
forced to withdraw from college because the parent’s money becomes unavailable
to pay tuition, room and board? If the child withdraws from college prior to
obtaining a degree then will he or she be able to make a living without further
consider a parent who moves into a skilled nursing home and obtains Medi-Cal
coverage. How important is it to the family to preserve the parent’s home for
the surviving children after the parent dies? Does the parent’s power of
attorney or living trust authorize the gifting of the home prior to the
parent’s death in order to save the home from Medi-Cal estate recovery claims after
the deaths of the parent and his or her spouse?
reasons like the ones discussed above, it is important that you review with an
attorney the provisions in your power of attorney and trust documents that
pertain to disability planning to see whether these provisions adequately
protect your family in the way that you like.
It is better to correct any inadequacies now rather than have your
family encounter nasty surprises later when it becomes much more difficult to
try to correct.