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Estate planning, trusts and incapacity

On Behalf of | Apr 24, 2018 | Firm News, Trusts |

Ohio residents can use estate planning to make certain provisions for situations in which they may be mentally or physically incapacitated. If such a situation arises, it is important that they have the appropriate legal documents in place so that it can be ensured that the decisions that will be made on their behalf are according to their wishes and preferences.

There are various medical directives that should be included in an estate plan. These directives may include durable power of attorney for health care, or a health care proxy, a living will and a do-not-resuscitate order. The exact directive that should be included in an estate plan will depend on the state in which a person lives.

For financial matters, a revocable living trust can be used to protect one’s financial assets if they become incapacitated. They can transfer their assets into the trust, act as the trustee, and if they become capacitated, the successor trustee will be authorized to assume control over the assets. Explicit provisions can be included in the trust to specify how the assets are to be managed. If the original trustee recovers, they can carry on with their duties of trustee.

The provisions of the trust can also specify how the status of the trustee is to be determined. For example, in order for the trustee to be deemed incapacitated, their condition has be confirmed by their own physician or by multiple attending physicians.

An attorney who practices estate planning law may advise clients about what types of trusts should be used to protect their assets if they should become incapacitated. The attorney may assist with creating provisions that ensure that the assets are managed according to the client’s preferences. The client may be advised of revocable living trusts, charitable trusts or constructive trusts.

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