Estate Planning
Planning for the Disabled Client

Planning for the Disabled Client

Loss of physical and mental ability, whether gradual or sudden, affects more of us as as life expectancies lengthen. Keeping the aging client in familiar surroundings with minimally invasive support systems is not a matter of accident. Appropriate legal documents coupled with family education can help you and your parents "age in place."

Physical Disability

Physical disability may be temporary - resulting from an accident - or be more permanent in nature as in the case of Multiple Sclerosis. Creation of an agency relationship so that someone other than the client can conduct business on the client's behalf may be indicated whether disability is temporary or more permanent. An agency relationship - most easily established by signing a Power of Attorney - may be limited in scope and duration to meet rather narrow purposes or may be drafted to convey broad powers to the agent. An agent should be selected only after careful consideration of the agent's trustworthiness and character. Whether a power of attorney is narrowly or broadly drafted, the agent usually has unlimited authority within the scope defined.

For those in need of an agent but who are unable to tap a familiy member or trusted friend for the purpose, agencies such as Lifespan may offer an alternative. These agencies can provide bonded individuals who will assist in paying routine expenses - either by preparing checks for the client to sign, or by acting as agent.

Mental Disability

Mental disability may cause a slight impairment of cognitive function or may result in an individual's inability to function independently. Some mental disorders seem more susceptible to treatment than others and some patients follow a medical regimen more responsibly than others.

For those with slight impairment of mental ability, creation of an agency relationship - described above - may be sufficient to manage monthly expenses. Where impairment is greater, however, inducing the client to place assets in a trust for the client's benefit - thus reducing the burdens of asset management and the risk of improvident investments and expenditure - must be considered. When the value of assets warrants, thought should be given to a trust with a professional trustee. The mentally disabled client is much more vulnerable to financial abuse from an unscrupulous agent than the physically disabled client who can read and review monthly financial statements.

When the client lacks the requisite legal capacity to sign a power of attorney or create a trust and is unable to manage his or her affairs, it may be necessary to consider Court appointment of a Guardianship pursuant to New York Mental Hygiene Law.

Copyright (c) 2008-2011, George T. Wolf. All rights reserved.