If someone cannot conduct business due to mental or physical incapacity, only a court (guardian) appointee can take over for this person—even if a valid will exists. (A will only goes into effect after death.) A power of attorney can name someone to also act for the incapacitated person, but the incapacitated person can still sign checks and empty their accounts. The court usually stays involved in a guardianship until the person recovers or dies and the court, not the family, will control how their assets are used to provide for their care. The process is public and can become expensive, embarrassing, time consuming and difficult to end. A living trust is often preferred for incapacity planning. With a trust, the person(s) you choose to act for you can do so without court interference, yet they are held to a higher standard as a trustee; if they misuse their power, they can be held accountable.
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- Estate Planning Considerations for Couples with an Age Gap
- Trust Funding: Is Everything Titled Correctly?