Protections When Estate Planning for Incapacity

Estate Planning for IncapacityAccidents and injuries are rarely predictable and should never be expected, but they are almost always inevitable. Fortunately, when estate planning for incapacity, a person may create certain safeguards in the management of his or her estate assets .  For example, a revocable living trust can create added provisions to account for planning for incapacity.  In addition, a client may grant a durable power of attorney to a trusted loved one to manage certain property and financial matters.  Without planning in advance for contingencies in the event of incapacity, the client will typically be required to go through the probate process.  The Charleston probate court may likely appoint a temporary guardianship in a manner that may not necessarily align with the client’s best interests or wishes.

Instead of being required to go through a potentially adverse probate process, a client can instead prepare for such circumstances by establishing an estate plan for incapacity, such as a revocable living trust. In doing so, the client will be able to protect personal interests while also empowering the appointed trustee (co-trustee or successor trustee) with specific instructions regarding his or her property and financial matters. Estate planning for incapacity will not only provide a written plan to the appointed trustee, but it will also enable them to make wise estate planning decisions without the worry of going against the goals of the incapacitated person.

Our Charleston estate planning attorneys provide legal representation for individuals, professionals and families to establish the necessary guardianship provisions, powers of attorney, and healthcare directives for estate planning for incapacity.

Revocable Living Trust

A revocable living trust can be a useful estate planning tool when a person is estate planning for incapcity, or who may be concerned about disability in the future.  The standby trust arrangement is the most popular form of the revocable living trust where mental or physical competency is an issue.  This type of estate planning trust would allow a person to appoint a co-trustee or successor trustee to assume management responsibility of the trust in the event the grantor, who is also the principal beneficiary, incurs a disability and cannot manage the trust assets alone.

Further, if a third party, family member or beneficiary challenges the revocable living trust on the grounds of mental capacity, this challenge would be less likely to succeed as compared to an attack on a last will and testament on similar grounds.  This is especially true if the revocable living trust was in existence and under a person’s (grantor’s) supervision for a reasonable period time – which is generally the case.

Durable Power of Attorney

A general power of attorney that is not durable terminates at disability, so the power of attorney must contain language indicating the person’s intent that the power of attorney continues to be exercisable even in the event of disability.  The durable power of attorney is less expensive to establish than the revocable living trust, and generally will avoid ongoing trustee management fees.  The durable power of attorney is a simple instrument to employ when estate planning for incapacity.


The guardianship creates judicial proceedings that become public record and entail ongoing judicial supervision, both of which the revocable living trust will avoid.

Call Us For An Estate Planning Consultation & Review

Our Charleston estate planning attorneys make estate planning as affordable and simple as possible for all of our clients.  Our Charleston law firm offers a free review of any estate planning documents currently in place and free consultations for those with questions about putting an estate plan in place.  Please call us at 843-564-5115 to schedule your consultation.