Should I agree to be the trustee for my disabled cousin's living will?
September 18, 2018 12:42 AM Subscribe
My cousin is intellectually disabled and my Aunt's recently asked if she can list me as a trustee on his living will. I don't think they have any other good options, so I'd like to agree to it. But I don't know much about wills or trusts, so I just want to be sure I'm not accidentally committing myself to something way out of my league. Is being a trustee generally a big deal or not that major?
More detail: I don't know them that well but we have a very small family. They don't have a lot of money and I doubt they're using a lawyer for this (I think it's just a form that's required by the doctor). My understanding from some quick googling is that the trustee is responsible for paying money from the trust for living expenses. Actually I'm not sure what the trust is composed of, maybe he has a small inheritance from another relative. Or can a trustee just be responsible for making sure social security/disability money is spent correctly? Some other questions:
-If I agree, do I have any legal obligations? Can I easily back out if it turns out to be too much work?
-What's the difference between a trustee and an executor? It sounded like the living will could list both.
-Can you generally make a list of trustees? I'd rather list one of my parents first, and then me next in case they die.
-Is it hard to move states with a living will/trust? My cousin lives across the country, so I'd probably need to move him closer to my family if my Aunt died.
I'm a generally competent person, and I'm good at paperwork, but I don't want to devote my life to caring for someone I hardly know, even if they're family. I'm really hoping this is something I can reasonably agree to though!
More detail: I don't know them that well but we have a very small family. They don't have a lot of money and I doubt they're using a lawyer for this (I think it's just a form that's required by the doctor). My understanding from some quick googling is that the trustee is responsible for paying money from the trust for living expenses. Actually I'm not sure what the trust is composed of, maybe he has a small inheritance from another relative. Or can a trustee just be responsible for making sure social security/disability money is spent correctly? Some other questions:
-If I agree, do I have any legal obligations? Can I easily back out if it turns out to be too much work?
-What's the difference between a trustee and an executor? It sounded like the living will could list both.
-Can you generally make a list of trustees? I'd rather list one of my parents first, and then me next in case they die.
-Is it hard to move states with a living will/trust? My cousin lives across the country, so I'd probably need to move him closer to my family if my Aunt died.
I'm a generally competent person, and I'm good at paperwork, but I don't want to devote my life to caring for someone I hardly know, even if they're family. I'm really hoping this is something I can reasonably agree to though!
Seconding Nalyd.
Sorry to make the usual non-free recommendation, but you need to see a draft of the document, and bring it to a professional who can help you understand what your responsibilities would be.
There are many resources on line. Here's one of the many sites that define "living will."
Depending on the degree of your cousin's disability, he may not be competent to execute a living will. The situation may be more complicated than it appears, and require more than a yes or a no from you. And yes, you could resign as trustee, but it might be complicated to ethically find someone to take over from you while still serving your cousin's best interests.
posted by JimN2TAW at 6:17 AM on September 18, 2018 [1 favorite]
Sorry to make the usual non-free recommendation, but you need to see a draft of the document, and bring it to a professional who can help you understand what your responsibilities would be.
There are many resources on line. Here's one of the many sites that define "living will."
Depending on the degree of your cousin's disability, he may not be competent to execute a living will. The situation may be more complicated than it appears, and require more than a yes or a no from you. And yes, you could resign as trustee, but it might be complicated to ethically find someone to take over from you while still serving your cousin's best interests.
posted by JimN2TAW at 6:17 AM on September 18, 2018 [1 favorite]
A Living Will is also known as an Advanced Directive, and it’s the document that details someone’s wishes for medical treatment in the event they are not capable of expressing those themselves. Sort of a more nuanced version of a “Do Not Resuscitate” order. If you are the decision making party in the Living Will, you would be the one making decisions about what procedures or treatments your cousin will/will not have if they aren’t able to make those decisions themselves.
A living trust is more like what you’ve described above: the person’s assets are placed in a trust and the trustee is responsible for making sure bills are paid and that the person’s finances are being looked after, and being the executor of whatever estate is left when the person dies. It doesn’t really matter for your purposes if it’s a small inheritance or their disability income, except to know how much money you are managing and how long it will last.
The word “trustee” makes it seem like your aunt is asking for the latter, but if it is a form for the doctor, and they are calling it a living will, it may be the former. Some advanced directives are for both financial and healthcare power of attorney, so this could be a very big job. It also could just be a redundancy for if/when your aunt passes away before your cousin—meaning that if you decided to refuse the responsibility later, they’d be worse off than if you just declined now and they have more time to make future plans. You really need to find out what the actual document is they are talking about.
Your other questions are relevant for both living will and living trust, so some things to consider:
A trustee deals with the terms of the trust, in this case managing the money. The executor deals with it after the person dies. You can be both trustee and executor of a trust—this is very often the case.
For both living wills and living trusts, there’s usually a hierarchy of agents (say, your aunt first, then if she can’t or won’t do it, it comes to your parents, then to you). In my state, you can refuse to serve, or you can be found unable yourself to represent someone (for example, if your aunt developed dementia and couldn’t make the decisions for your cousin, the responsibility would pass down the line). But, as I mentioned above and as JimN2TAW mentioned, there’s an ethical issue to consider in backing out versus just not agreeing to begin with.
Living wills are state-based documents, so you should look at the requirements for your state and also cousin’s state to see what qualifies in each.
Good luck!
posted by assenav at 6:24 AM on September 18, 2018 [4 favorites]
A living trust is more like what you’ve described above: the person’s assets are placed in a trust and the trustee is responsible for making sure bills are paid and that the person’s finances are being looked after, and being the executor of whatever estate is left when the person dies. It doesn’t really matter for your purposes if it’s a small inheritance or their disability income, except to know how much money you are managing and how long it will last.
The word “trustee” makes it seem like your aunt is asking for the latter, but if it is a form for the doctor, and they are calling it a living will, it may be the former. Some advanced directives are for both financial and healthcare power of attorney, so this could be a very big job. It also could just be a redundancy for if/when your aunt passes away before your cousin—meaning that if you decided to refuse the responsibility later, they’d be worse off than if you just declined now and they have more time to make future plans. You really need to find out what the actual document is they are talking about.
Your other questions are relevant for both living will and living trust, so some things to consider:
A trustee deals with the terms of the trust, in this case managing the money. The executor deals with it after the person dies. You can be both trustee and executor of a trust—this is very often the case.
For both living wills and living trusts, there’s usually a hierarchy of agents (say, your aunt first, then if she can’t or won’t do it, it comes to your parents, then to you). In my state, you can refuse to serve, or you can be found unable yourself to represent someone (for example, if your aunt developed dementia and couldn’t make the decisions for your cousin, the responsibility would pass down the line). But, as I mentioned above and as JimN2TAW mentioned, there’s an ethical issue to consider in backing out versus just not agreeing to begin with.
Living wills are state-based documents, so you should look at the requirements for your state and also cousin’s state to see what qualifies in each.
Good luck!
posted by assenav at 6:24 AM on September 18, 2018 [4 favorites]
Or can a trustee just be responsible for making sure social security/disability money is spent correctly?
This is usually a different thing (in the US which I am assuming is where you are), called being a "representative payee" and can be done from close up or at a distance. My mother was a representative payee for an intellectually disabled man. His SSDI went into a special bank account that she would dole out to him. When she died, this bank account needed to be reassigned to a new rep payee (i.e. was not "her money" that then belonged to the estate). Not too complex but a decent amount of paperwork.
The other stuff seems like it needs to be disambiguated a little bit. My sister agreed to be a trustee for a trust that my mother left for my foster brother (so not quite the same as your situation - he lives independently, not clear if your cousin does) and here are some things that are true for her situation which may or may not be relevant to you
- she controls a "pot of money" (for lack of a better word) that she gives to him upon request and the money is only for certain things stipulated in the trust document
- she can legally back out of this arrangement at any time and my cousin is the "back up" trustee. If my cousin also did not want to do this, a lawyer would be appointed. This lawyer would get paid with trust moneys so it's not really cost-effective but it would work to make sure my foster brother had access to this money
- they live in the same state but definitely would not have to for their situation
posted by jessamyn at 7:22 AM on September 18, 2018 [2 favorites]
This is usually a different thing (in the US which I am assuming is where you are), called being a "representative payee" and can be done from close up or at a distance. My mother was a representative payee for an intellectually disabled man. His SSDI went into a special bank account that she would dole out to him. When she died, this bank account needed to be reassigned to a new rep payee (i.e. was not "her money" that then belonged to the estate). Not too complex but a decent amount of paperwork.
The other stuff seems like it needs to be disambiguated a little bit. My sister agreed to be a trustee for a trust that my mother left for my foster brother (so not quite the same as your situation - he lives independently, not clear if your cousin does) and here are some things that are true for her situation which may or may not be relevant to you
- she controls a "pot of money" (for lack of a better word) that she gives to him upon request and the money is only for certain things stipulated in the trust document
- she can legally back out of this arrangement at any time and my cousin is the "back up" trustee. If my cousin also did not want to do this, a lawyer would be appointed. This lawyer would get paid with trust moneys so it's not really cost-effective but it would work to make sure my foster brother had access to this money
- they live in the same state but definitely would not have to for their situation
posted by jessamyn at 7:22 AM on September 18, 2018 [2 favorites]
The legal consequences and terminology varies by state, and there is information on the MeFi Wiki Get a Lawyer page about finding an attorney, including free and low-cost legal resources. At this point, you may only need a consultation to help you figure out the legal consequences and options; it is great that you are taking your potential responsibility seriously, and it is really important that you get advice tailored to these particular circumstances and according to the specific laws that apply.
What worked really well for me recently was to find an estate planning attorney who formerly worked for a legal aid organization, particularly because I needed documents and advice quickly; the lawyer was able to quickly adapt a template for a power of attorney and advance directive, and they explained how these documents are properly executed according to state law so they are enforceable. Similarly, you may also benefit from consulting with an attorney who has experience working for people with disabilities and their caretakers.
posted by Little Dawn at 11:16 AM on September 18, 2018
What worked really well for me recently was to find an estate planning attorney who formerly worked for a legal aid organization, particularly because I needed documents and advice quickly; the lawyer was able to quickly adapt a template for a power of attorney and advance directive, and they explained how these documents are properly executed according to state law so they are enforceable. Similarly, you may also benefit from consulting with an attorney who has experience working for people with disabilities and their caretakers.
posted by Little Dawn at 11:16 AM on September 18, 2018
If this is an advanced medical directive, you should have a conversation with your aunt and your cousin (if possible) about their wishes in case of serious disability. (Here are some AARP conversation starters if you want).
If it's money-related, my general advice is that if you can file a 1040, you can be a trustee or executor of a simple estate/trust. If it's complicated, the trust/estate should allow for you to hire an attorney for help.
posted by Eyebrows McGee at 7:12 PM on September 18, 2018 [1 favorite]
If it's money-related, my general advice is that if you can file a 1040, you can be a trustee or executor of a simple estate/trust. If it's complicated, the trust/estate should allow for you to hire an attorney for help.
posted by Eyebrows McGee at 7:12 PM on September 18, 2018 [1 favorite]
This thread is closed to new comments.
posted by nalyd at 3:26 AM on September 18, 2018 [3 favorites]