Page 29 - Sept 2017

Legal disability: Understanding and avoiding the system
Police Officers are ordinarily concerned with the issue of disability when injured on the job. However, the greater risk to your and your family members’ secu- rity is sudden long-term disability that affects legal capacity.
What is legal disability?
A “person under legal disability” refers to
a person 18 years or older who (a) because of mental deterioration or physical incapacity is
not fully able to manage his or her person or estate, or (b) is a person with mental illness or is a person with devel- opmental disabilities and who because of his or her men- tal illness or developmental disability is not fully able to manage his or her person or estate, or (c) because of gam- bling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose himself or herself or his or her family to want or suffering.
(Source: P.A. 88-380.)
Like most statutes, it’s easy to get lost in the details. Simply put, you can be declared legally disabled if some- one petitions the court with the allegation that you are not fully able to manage your person or estate.
Although a person cannot be declared “disabled,” or incompetent, for questionable behavior alone, if that person is shown to lack the capacity to make sound deci- sions, a court can issue an order of legal disability, making the person a ward of the court, and issue a guardianship. How can this be avoided?
Let’s be honest: If we live long enough, even if we do not have disabling injuries from an accident or illness, most of us will become physically or mentally unable to handle our affairs at some point late in life. However, if we leave ourselves open to the court system and all of its expense and uncertainty, we do so at our peril. In my career, I have seen estates completely lost and families torn apart in guardianship proceedings, and the system is open for abuse from greedy relatives and “friends.”
The solution is doing something in advance. Plan now. In the case of legal disability, one of the controlling fac- tors is the court’s concern to preserve assets in your name as well as to protect your welfare. Do you want a court to be involved in your life? It is time to take steps to control your assets and choose what circumstances need to exist before you are considered disabled.
• Execute a financial power of attorney while you have
your capacity. Specify who your agent should be in the event of your incapacitation. Choose your doctor, not one who is court appointed, to determine your capac- ity.
• Execute a health care power of attorney and appoint a trusted person to make health care decisions on your behalf if you are unable to do so yourself.
• Remove your assets from the court’s guardianship control by transferring them into a living trust now. A living trust protects your assets from probate court at your death, and it also protects you during your life- time in the event of a disability. Your successor trustee will manage your assets when you are unable to do so, as determined by your family doctor or by your choice. And without the court’s interference.
What if your child becomes disabled?
If one of your children, or another beneficiary of your estate, has a disability now, it is essential that you have an estate plan with supplemental needs instructions, or that you set up a special needs
FOP
Benefits Plan
trust (SNT) for your child in advance of your death. Otherwise, your child can lose public benefits. What if he or she acquires a disability before your death by accident or illness? If you do not have a living trust that includes an SNT protection, your child will either lose public benefits or what you leave them will go to the gov-
ernment for reimbursement of SSI and Medicaid.
Take steps now to ensure that if something happens to affect your capacity, or if one of your children or benefi- ciaries acquires a disability, your assets are not at risk and
you are fully protected.
A fully funded living trust, complete with financial and
health care power of attorneys, is available to you at 50 percent reduced rates in your FOP Benefits Plan.
Registration for FOP members and family is free. Visit fopbenefitsplan.com or call 866-729-5454 for assistance with registering. d
Tom Tuohy is the founder of Tuohy Law Offices and the FOP Benefits Plan. He has been a police lawyer for 34 years. His father was a CPD detective, and his grandfather was CPD Chief of Major Crimes. You can reach Tom at 312- 559-8400. You can also contact him directly for questions on your living trust.
TOM TUOHY
CHICAGO LODGE 7 ■ SEPTEMBER 2017 29