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Thoughtful estate planning for everything you own and everyone you love.

Jerry O'Brien – Orange County, CA

DISABILITY PANEL MISUSE AND ABUSE (PART 2)

Written by Jerry O on March 20, 2016

WHEN NOT TO INCLUDE A DISABILITY PANEL CLAUSE

Bad reasons to use Disability Panels are almost the same as the good ones. Privacy allows for mistreatment, neglect, and abuse. Transparency is a concept that allows your actions to be examined to determine if they are up to the community standard. The shame of developing an illness pales in comparison to being locked away in a bedroom, not receiving proper hygienic care, or eating only when your caregiver decides you should.

Lawyers often draft in inadequacies when it comes to Disability Panels. The text of the Disability Panel clause must define clearly how the Disability Panel operates. It must explicitly state that decisions can only be made after the panel has actually met. It should require a format for the meeting such as notice to panel members. Date time and Place of meeting. What has caused the need to call the meeting? There should be a chairperson and there should also be minutes. It must prohibit one member from circulating a certificate of disability only to those who agree with her position. If a doctor is included on the panel she should be a doctor who deals only with the settlor and does not see one of the other members as a patient or as the person who drives the Settlor to appointments, or arranges for office appointments or actual treatment. It should include at least one or two people who are not interested in the outcome (i.e. people without an economic interest in the result of the decision.)

Where Other than in My Trust, Where May I Find a Disability panel?

Disability Panels Uses.

Disability Panel Misuses.


Disability Panel, Would One Benefit You? (Part 1)

Written by Jerry O on March 18, 2016

VALUE ADDED TRUSTS               

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Three generations likely to be challenged by a Disability Clause at some point.

This is my first Blog about value-added features in a trust. The clause I have chosen is one creating a “Disability Panel.” This clause if properly drafted is very useful in the right hands. However, a Disability Panel clause is very dangerous to the Settlor in the wrong hands.

In order to stand out when selling a trust based estate plan to higher-net-worth Settlors engaged in estate planning, lawyers include value added features. Disability Panels are a popular feature.

The best value added feature is making sure that the trusts accurately and plainly states the Settlor’s desires. However, the Settlor will only know if this is the case, after the trust is initially drafted.

There are other value-added features to be considered by the Settlor. They include Disability Panels, Decanting Clauses, Supplemental Needs Trusts, and Trust Protector clauses. These clauses add to the flexibility and usefulness of the trust to the Settlor. Each clause should be discussed to determine if they will be valuable to this Settlor.

WHAT IS A DISABILITY PANEL?

A Disability Panel defined: a group of people chosen by the Settlor to determine if the Settlor retains the capacity to serve as trustee of her trust.

Disability Panels are typically included in higher net worth planners’ trusts. Lawyers place a premium on privacy. Lawyers are required by law to protect a client’s secrets. Also, most clients are secretive about their estate, its contents, and its value.

Lawyers often see issues carrying out the Settlor’s intent in the operation of his estate plan. Potential beneficiaries may not agree with what the trust says. This can lead some people to believe that they can achieve a more desirable outcome for themselves if they control the Trust.

GOOD REASONS FOR USING A DISABILITY PANEL?

There are good reasons to use Disability Panels. The obvious reason is to make sure the settlor still has the capacity to manage his or her estate. If the Settlor has a catastrophic medical event she may not be able to carry out her duties as trustee. If she develops a drug dependency, or mental health problems a Disability Panel may be necessary to determine capacity.

WHEN IS DISABILITY NOT INCAPACITY

But what if she is just aged, or aged and frail, or has a chronic condition which requires care, but her condition does not affect her capacity. Any of the above may physically disable a person but these conditions may allow the settlor to continue to manage her estate.

There are also patently invalid reasons to use a Disability Panel clause. Care must be taken to ensure that only good reasons for using the Disability Panels are used. This is solved by careful drafting. The Settlor and his successor trustee must understand the clause.

GOOD REASONS TO USE THE DISABILITY PANEL

Good reasons to use disability panels are many. First, privacy is the most common reason. Then there is protecting the family name, or the family business. There is also the possibility that use of the Disability Panel will get the person suffering from the disability or incapacity the treatment they need, without risking general public disclosure of the fact that they need treatment.

Second, there is still a stigma that attaches to becoming disabled. It can attach even if it is your parent and not you who is disabled.  To protect themselves some people may want a disabled person who still has capacity removed from  the public eye.

Reversibility is another valid reason for using the Disability Panel. The family that will have to care for the disabled family member can act as an advocate for the settlor’s recovery and bring him home as soon as possible.

NEXT POST: DISABILITY PANEL DANGERS


Welcome to Gerard W. O’Brien Blog!

Written by Jerry O on March 13, 2016

Welcome to Gerard W. O’Brien Blog!