18th Jun 2011

Without a living trust and/or powers of attorney for management of finances and assets, you will end up in a “legal twilight zone” if you become incapacitated.

Even a Will cannot help you or your family if you are incapacitated, because a Will does not have any legal effect until you pass away.

A living trust and a power of attorney give authority to someone to act for you in case you are unable to act for yourself because you are incapacitated.

And, incapacity can last for years, essentially freezing your assets and finances.   In those cases, the only alternative is for the family to file for conservatorship (i.e., a guardianship of an adult person) over you; an extremely expensive, time-wasting, privacy-invading, and emotionally draining court procedure.

In a recent case, my client’s elderly parent became incapacitated due to advancing dementia.   The parent had executed a living trust and powers of attorney, but had never given the family a copy.   The family could not locate the parent’s legal documents, but they knew the name of the attorney who had prepared them.

The attorney refused to give the family copies on the basis of attorney-client confidentiality, and since the parent was incapacitated, no permission could be given to the lawyer.  The result was that the family was forced to go to probate court and file a petition for conservatorship.

Failure to intelligently PLAN in advance creates financial and management nightmares for your family; and puts you in a “twilight zone”.   

A comprehensive estate plan including a living trust, will, powers of attorney, and other planning documents put together by a qualified estate planning lawyer is the best solution to avoid the “twilight zone” in the future.


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This blog is intended for informational purposes only and is not intended and does not constitute legal advice; and is not a substitute for legal advice from a qualified estate planning attorney in your jurisdiction.

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