Living Trust and Guardianship

Imagine if you had to go to a bank and tell them you needed access to someone else’s account and only had a power of attorney to saying you could. That could be a painful experience – for everyone.

So, giving someone a durable power of attorney is better than doing nothing. But, placing your assets in a living trust is really the gold standard for incapacity asset management.

Normally, the best thing to do is transfer your assets (called funding) to the living trust, with instructions on how they are to be managed if you become incapacitated. Normally you would be the trustee of the trust initially. But, you should name a successor trustee in case you become incapacitated.

Your successor trustee will have very little trouble managing the assets in the living trust during your incapacity. After all, the assets are not in your name, they are in the name of the trust. And, he or she becomes the trustee if you become incapacitated or are otherwise unable to handle your affairs.

Even if you don’t fund the living trust, you still can have it set up, complete with your instructions, for how you want your assets managed if you become incapacitated.

Then, you can give a power of attorney to your successor trustee, allowing him or her to fund the trust, with your assets, upon your disability.

Once the trust is funded, your successor trustee, as trustee of the living trust, can handle your affairs for you with relative ease.

So, whether the trust is funded before or after disability, it is much easier for the trustee to manage your affairs if your assets are in a living trust, than if they are still in your name.

For most people, the living trust is the best option – when it comes to incapacity asset management -- because it allows for a relatively quick, easy, controlled, and dignified transfer of asset management if you become incapacitated.

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