Estate Planning for Mental Incompetence
Estate Planning is always a “pro-active” event. That is, you cannot create your Trust or Will after you die. In the same way, you cannot control what will happen upon your mental incompetence after you are mentally incompetent.
What is mental incompetence?
Simply stated, mental incompetence is when a person is unable to make a rational decision. Mental incompetence may be for a limited amount of time, such as when someone is in a coma or temporarily unconscious due to an automobile accident. Mental incompetence may also be a permanent condition, such a condition caused by Alzheimer’s disease.
Who determines if a person is mentally incompetent?
In South Carolina, unless determined otherwise, the final determiner of mental incompetence is the Probate Court. Such a determination is usually in a public court hearing.
For our clients, we usually suggest that they avoid control by the court system. This is done by giving instructions in one’s Trust or power of attorney which authorizes who determines if one is mentally incompetent. We call this a “Disability Panel.” This panel can consist of anyone you wish.
More court proceedings
Unless you have made provisions otherwise, the Probate Court will appoint a guardian and a conservator for you should you become mentally incompetent. If this is required, the conservator may have to report back to the Court about your assets for the remainder of your life!
A better way
We feel that a better way is to eliminate the Court’s involvement and control. This is handled by the use of a Revocable Living Trust or, in some cases, by a durable power of attorney. These documents allow the person of your choice to take care of your assets without court intervention.