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Should I Update My Estate Plan If My Spouse Is Incapacitated?

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“Should I Update My Estate Plan If My Spouse Is Incapacitated?” by Attorney Laura Curry (Audio)

Should I Update My Estate Plan If My Spouse Is Incapacitated? Years ago, you and your spouse met with an attorney to develop an estate plan. Perhaps you set up a will naming each other as personal representative/executor or even a living trust where you are both named as initial co-trustees. Unfortunately, if one spouse is facing the challenge of an incapacity issue, such as Alzheimer’s or another form of dementia, then there are some issues that the “well” spouse must address.

Ideally, a proper estate plan is in place and allows the “well” spouse to demonstrate the legal authority to act on behalf of the incapacitated spouse. This will include a financial power of attorney and healthcare power of attorney. If there are no powers of attorney in place, the “well” spouse may need to petition the court to be appointed as their guardian in order to manage their healthcare decisions or access any account in just the incapacitated spouse’s name. The person appointed as the guardian will need to file annual reports with the court detailing the property distribution of the incapacitated spouse and will also need to get permission from the court to relocate the incapacitated spouse and permission for certain end-of-life decisions.

 Hopefully there is a plan in place and the “well” spouse just needs to review their estate planning documents and possibly update to remove the incapacitated spouse from their documents. For example, they may wish to name their adult child or a friend to replace the incapacitated spouse as their agent under the powers of attorney documents or as their executor in their will. If you and your spouse set up a living trust, the “well” spouse may be able to update the trust to remove the incapacitated spouse as a trustee. This will depend on the language of the power of attorney and whether it gave the agent the authority to modify the terms of a trust.  If the agent was granted this authority, it may be a good idea to remove the incapacitated spouse as an acting trustee to minimize the potential that there is undue influence or opportunities for scams. It is also important for the “well” spouse to think about who will manage the trust assets if they predecease the incapacitated spouse.

While it is a difficult time for the “well” spouse when they experience their spouse declining and becoming incapacitated, it is important that they think about their estate plan and what updates need to be made so they save additional time, stress, and cost to their loved ones.  If you and your spouse are concerned about one of you becoming incapacitated or you are currently facing this challenge, reach out to the attorneys at Sinclair Prosser Gasior today to create or update your legal documents.

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