INCAPACITY

Many people are worried about losing control over their assets in the event a child or other interested person believes that they have become incapacitated. A Living Trust allows YOU to set the standard for determination of your incapacity.

You are the sole managers of the Trust as long as you are not incapacitated. On incapacity, the healthy spouse continues in sole control, if possible.

The issue arises: How is incapacity determined? The answer is 100% within your own control.

The traditional answer is: "Any two California licensed physicians shall determine my incapacity," but that allows family members to "shop" for doctors who may be less than ethical. This takes the determination out of your control.

You may appoint a personal doctor, such as "Dr. Robert Smith shall be the sole determiner of my incapacity." However, he may die, move, or be unavailable, in which case no one can declare you incapacitated.

You may appoint a medical group, such as "Any physician from Ferry Building Medical Group shall be the sole determiner of my incapacity." This widens the range of doctors in the event that your personal doctor within that group has retired or died.

You may appoint a friend or family member, or a group with either majority or unanimous agreement required.

In general, I prefer a trusted person (or group) who has NO SELF-INTEREST or personal benefit from signing a statement that you are incapacitated.

This is placed in the Trust, allowing a successor manager to take over for you, and into the Power of Attorney, activating it.

Compare Community Property and Joint Tenancy

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