By Beckett C. Horner, J.D., LL.M.
Buzz Aldrin was the second person ever to set foot on the moon, stepping out of the Apollo 11 Landing Craft minutes after Neil Armstrong almost 50 years ago. Prior to that momentous Apollo 11 mission, Mr. Aldrin graduated third in his class at West Point, and earned a PhD in Astronautics from MIT. Even with all of his life accomplishments and penchant for preparedness and planning, Mr. Aldrin is currently embroiled in a conflict with two of his children that may have been minimized or even alleviated with a more comprehensive estate plan.
Mr. Aldrin’s two children have filed court documents to establish a guardianship for Mr. Aldrin, however Mr. Aldrin continues to assert his cognizance and capacity, and claims his children are attempting to wield control of Mr. Aldrin’s business and foundation. The struggle has been widely publicized and covered (Wall Street Journal; Associated Press; BBC; Washington Post). A few additions to Mr. Aldrin’s estate plan (discussed below) may have alleviated the issues at hand.
A popular document among clients, the Declaration of Preneed Guardian, allows the client to declare his or her preference for his or her guardian in the event that such client ever needs a guardianship, or a guardianship is ever opened up on behalf of such client. With the Declaration of Preneed Guardian, you are able to insert your preference for a guardian before one is ever needed. In this case, Mr. Aldrin could have simply declared his preference for a guardian (should one be required). Even in response to a petition for guardianship by Mr. Aldrin’s children, the Court would have been compelled to give deference to Mr. Aldrin’s preferred Guardian listed in the Declaration of Preneed Guardian if the Court decided that a guardianship was necessary.
Another option is to discuss a client’s incapacity in detail in the estate planning documents, like a Revocable Trust. It is advisable to specify how a client’s incapacity may be determined, and who may initiate such a determination. For instance, a client’s Revocable Trust can specify that a client may only be found incapacitated if the next successor Trustee receives such a finding from the client’s physician AND a physician board-certified in psychiatry. Further, a Trust can be written so that only the successor Trustee can request such findings from the doctors on the client’s behalf. In this regard, the person whom the client has chosen as successor Trustee is the same person that will be tasked with confirming the client’s incapacity and taking over from there. If the Trust is properly funded with the client’s assets, then the successor Trustee will be responsible for all of the assets, to the exclusion of all others.
The goal is to take control of unforeseen circumstances as much as possible to protect yourself if you become incapacitated. If you would like to discuss how your estate plan can incorporate important provisions and documents that will protect you in the event that you become incapacitated, please feel free to contact me at [email protected] or 772-794-1918.