Snapshot: Incapacity Planning

Although death is easy to define, incapacity is a bit more difficult. For years, estate planners drafted documents requiring incapacity be defined in only one of two available ways: (1) by court or (2) by the confirmation of two doctors’ opinions. Although these methods are still alive today, Myatt & Bell, P.C. (“M&B”) began thinking differently about the process—we began thinking of family privacy.

Enter the M&B Incapacity Panel. This Panel is comprised entirely of individuals selected by the clients, and is written directly into the trust. As such, the client has an opportunity to surround themselves with the individuals they are most comfortable with during this intimate time of determining a loved one’s incapacity. Instead of two doctors who possess the medical knowledge to make the determination but lack the familiarity of relationship with the family, the Panel is empowered to make the decision without consulting a single doctor.

To protect from abuse, the client can specify that the Panel arrive either at a majority or unanimous decision. In either case, the determination of the Panel is fully enforceable under law and triggers the Successor Trustee provisions of the trust. This ensures that once clients are determined incapacitated, that another, qualified, competent, and trusted individual rises to take the responsibilities of Trustee.

In short, the Panel provides a respectful, intimate, and private manner for a family to make this difficult decision without subjecting the incapacitated family member to a single medical exam.