Does your estate plan adequately protect your loved ones should you become disabled? That is, do your power of attorney and trust instruments authorize your agent and trustee, respectively, to assist those who depend on you in the manner you would want were you to become disabled?

It is entirely possible that your legal instruments do not adequately address the needs of all your loved ones, particularly your adult children.

These documents focus on protecting your needs during your disability. Adjustments are needed if you want to protect persons such as your adult children who are no longer your legal responsibility.

Let us consider some scenarios that might present a hardship to the loved ones of a disabled person.

First, consider a parent whose adult child lives at home and take cares of the parent.

If the parent were hospitalized or placed into a skilled nursing home would that child still be allowed to live at home while the parent was away and unable to manage her own affairs? Would anybody else in the family object to the child staying? Who will pay the utility bills incurred by the child?

If the parent's plan is that the parent's resources are to assist the adult child then the parent's power of attorney and trust (as relevant) should specifically authorize the same. Otherwise that child may find himself in an impossible situation and be forced to leave the area; even if the parent might prefer the child stay at the home and be close at hand.

Next, consider a parent with a special needs child who lives independently in his or her own home.

The special needs child may still depend on the parent for supplemental financial assistance, personal care, and advocacy regarding to maintain SSI and Medi-Cal benefits.

What will happen to the child if the parent were to become disabled? Will the parent's resources still supplement the child's benefits? Will the parent's resources be made available to pay for an advocate to represent the child before the Social Services Department?

Now, consider a parent supporting an adult child at college. Will the child be forced to withdraw from college because the parent's money becomes unavailable to pay tuition, room and board? If the child withdraws from college prior to obtaining a degree then will he or she be able to make a living without further parental support?

Finally, consider a parent who moves into a skilled nursing home and obtains Medi-Cal coverage. How important is it to the family to preserve the parent's home for the surviving children after the parent dies? Does the parent's power of attorney or living trust authorize the gifting of the home prior to the parent's death in order to save the home from Medi-Cal estate recovery claims after the deaths of the parent and his or her spouse?

For reasons like the ones discussed above, it is important that you review with an attorney the provisions in your power of attorney and trust documents that pertain to disability planning to see whether these provisions adequately protect your family in the way that you like.

It is better to correct any inadequacies now rather than have your family encounter nasty surprises later when it becomes much more difficult to try to correct.

Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com.

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