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D. If disability

D. Planning for disability or incompetence

A Will, of course, is of no help in this regard, because it has no effect at all until death. When disability planning is appropriate, the Trust can be a useful tool. Since assets in a living Trust are already under the control of a Trustee, who can make financial decisions, the estate owner’s resources can be managed and used for his/her benefit even in the event of sudden incapacity. Therefore, it is imperative that a back-up Trustee be named, especially if the Grantor initially serves as his/her own Trustee. When two spouses are serving as their own Trustees, the Trust document should be worded to allow either to act independently. In all cases, if the disability is temporary, the Grantor can resume the role of Trustee, if desired.

The living Trust can thus avoid months in a legal disability proceeding to have a guardian appointed by the court. Ongoing court supervision over financial decisions is also avoided. A testamentary Trust, by definition, does not exist during lifetime and cannot offer this benefit.

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