When creating an estate plan, one of the most important decisions you’ll make is choosing the person or entity who will handle your legal, medical, and financial affairs if you’re ever unable to manage them yourself or after you pass away. This person must be someone you trust to make crucial, often time-sensitive decisions, while being transparent, ethical, and fair with those who have an interest in your well-being and your estate.
In most estate plans, several documents such as trusts, powers of attorney, wills, and healthcare directives are used. Each of these documents names someone to act on your behalf, also known as a fiduciary. The title of the fiduciary varies depending on the document:
| Legal Document | Fiduciary Role/Title |
|---|---|
| Last Will and Testament | Executor or Personal Representative |
| Trust | Trustee |
| Power of Attorney | Agent or Attorney-in-Fact |
| Healthcare Directive or Healthcare Power of Attorney | Healthcare Agent or Healthcare Surrogate |
Sometimes, individuals wonder whether a disabled person can serve in one or more of these fiduciary roles. The short answer is yes! A disabled individual can serve as an executor, trustee, or other fiduciary as long as their disability does not prevent them from fulfilling the legal responsibilities required by the role.
Legal Requirements for Naming a Fiduciary
To understand this better, let’s look at the Uniform Trust Code (UTC), a model law that has been adopted in some form by 35 states. While details may vary by state, the UTC gives us general guidance on fiduciary responsibilities, specifically trustees.
Interestingly, the UTC does not set specific qualifications for serving as a trustee. The only requirement is that the trustee must accept the role, either by signing a written agreement or by starting to carry out the duties of the position. So, in states following the UTC, a person with a disability can absolutely serve as a trustee, as long as they accept the role and are able to perform their duties effectively.
It’s also important to note that prohibiting someone from serving as a fiduciary solely because of a disability could violate the Americans with Disabilities Act (ADA), a federal law that protects individuals from discrimination based on disability.
What Happens if a Fiduciary Cannot Fulfill Their Duties?
If a disabled person (or anyone else) named as a fiduciary is later found unable to fulfill their duties, there are safety measures in place. For example, the UTC allows for the removal of a trustee if they are unfit, unwilling, or unable to effectively manage the trust. This ensures that, while the initial choice of a trustee is important, the law provides a way to address any issues that might arise.
Practical Considerations for Naming a Disabled Fiduciary
When choosing a fiduciary, it’s essential to understand the responsibilities of the role. Ask yourself whether the person you’re considering, disabled or not, has the ability to carry out those duties. For example, if you name an adult child who is blind or deaf as your executor, think about whether their disability would prevent them from fulfilling their responsibilities. If you’re unsure, ask your attorney to explain the specific duties required so you can make an informed decision.
Also consider whether the individual can get help from technology or other resources to overcome any obstacles their disability might pose. Many people with disabilities can effectively fulfill fiduciary roles with the right support in place.
Conclusion
Ultimately, a disability such as blindness or hearing impairment may have little to no effect on someone’s ability to serve as a fiduciary, especially if they can access tools or assistance to perform their duties. In fact, excluding a trusted family member or professional simply because of a disability could mean passing over the ideal candidate for the job.
When it comes to choosing your fiduciary, it’s important to look beyond any physical or mental limitations and focus on trustworthiness, responsibility, and a willingness to act in your best interests.
If you have questions about selecting a fiduciary or want to explore your estate planning options, we’re here to help. Schedule a Life and Legacy Planning Session with us to create or update your estate plan and ensure your wishes are carried out exactly as you intend.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. This will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a no-obligation 15-minute introductory phone call today.