Putting assets into a trust can shelter them from your incapacity. Revocable trusts–that is, they can be cancelled–are popular for probate avoidance but they’re also valuable for incompetency planning.
Advantages:


  • You can act as trustee and thus retain control of the trust assets. A co-trustee can be named or a successor trustee can be designated to step in if you become incompetent, as certified by more than one doctor.
  • In the event of your incompetence, the backup trustee can become the primary trustee without a public court battle or private family skirmishes.
  • Some banks and investment firms that balk at accepting powers of attorney willingly deal with successor trustees.
    In the trust documents you can include extensive instructions as to how you’d like the assets to be handled in case of your incapacity and how you’d like them to be distributed after your death.

Disadvantages:

  • Setting up a trust means working with a capable lawyer and paying substantial legal fees. Depending on the circumstances, costs will range from several hundred to several thousand dollars.
  • You have to retitle your assets from your own name to the name of the trust in order to get the benefits described above.
  • Revocable trusts offer no tax advantages; if that’s your goal you need to create an irrevocable trust, a more permanent and probably more expensive vehicle.