A Will is only effective when you die, not before. It only moves assets that are titled in your name through the Probate Court. If there is real estate in different counties and different states, you may have multiple Probates to move those pieces of land. The Will cannot plan for Mental Disability care.
We are 6 to 9 times more likely to become mentally disabled than we are to die in a given year.
Unfortunately, my parents are a good example. My mom has declining mental capacity with some combination of Alzheimer’s and Parkinson’s. She is still the terrifically nice woman that she always was. She is the nicest person I have ever met. However, she could in no way handle her legal affairs. She couldn’t handle a checkbook, know when to take and follow her own medications, or make and keep doctors’ appointments by herself.
My father, who was the smartest person I’ve ever met, was physically very limited at the end of his life, but, most days, was still very sharp mentally.
Mental Disability Planning has to be done separately. The most control you can have is to have specific Mental Disability Planning set out in your Revocable Living Trust (a/k/a Living Trust) which you have established while you are mentally competent. Each family and person is different. Each Estate Plan needs to be customized with the client’s desires and, working with the Estate Planning Attorney, designing out a Revocable Living Trust to carry out those desires. You can be specific as to whether the assets in the Trust are to take care of you alone, or also your spouse or dependants. You can be very specific as to whether you want to remain at home as long as medically and financially feasible. If you have to be in a care facility, you name the facility or you name the people who choose the facility. You can also recommend what geographic area you want that facility to be in or which family member or friend you want to live near in the event you have to be in a care facility.
By doing good Mental Disability Planning, including inside the Revocable Living Trust, we can avoid the necessity of an Incompetency or Guardianship Court Proceeding.
Health Care Powers of Attorney and Health Care Designations (HIPAA) are also vehicles that are used in Mental Disability Planning. However, your written instructions are always the most needed and appreciated way to do Mental Disability Planning. Having those detailed written instructions inside your Revocable Living Trust is one of the best ways to insure that your assets are used to take care of you in the way you want to be cared for in the event you become Mentally Disabled.