Competent and comprehensive estate planning has never been more important. I am urging my colleagues who focus on estate planning to consider that in light of the projected longevity of Californians, estate planning should now be called “life planning” and “life planning” includes consideration of this critical question: Who is best equipped to make decisions for me, and for my family, if I am ever incapacitated?

Who, indeed. I recently was asked to find a “professional trustee” for a frail elderly incapacitated woman, Mrs. H., whose husband had died and left her, and their substantial estate, in the hands of neighbors. The estate plan named several people to act as successor trustee, health care agent, and agent under a durable power of attorney. In many ways, it was a very solid estate plan. Except that not one of the people named, NOT ONE, wanted to be responsible for an elderly woman with dementia and the potential liability of dealing with her step-daughters. By the time we went to court, had two hearings, paid the “Probate Volunteer Panel attorney,” and coordinated the bond, the failure to anticipate incapacity cost Mrs. H. about $10,000.00. 

By embracing the reality that your neighbors, or even family members may not have the skills to be stellar fiduciaries and that there is no longer an institution which will protect you (and your family),  it is more important than ever to make certain that the people (and institutions) named as trustees, executors, and agents are ready, willing and able to step in and manage your assets and health care decisions during your potential incapacity. 

The best estate plans should always name at least one California Licensed Professional Fiduciary.  The best plans are for life.

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