An important element of creating an estate plan is choosing who will act for you to handle your legal, medical, and financial affairs if you become unable to manage them yourself due to accident, illness, or aging, and when you pass away. The individual or entity you choose must be someone whom you can trust to make crucial and often time-sensitive decisions, who is willing to be detail-oriented and transparent with those who have a right to know how your property is being managed and used, and who will be ethical and fair to all of those with an interest in your welfare and, ultimately, your property.
A typical estate plan utilizes a combination of trusts, powers of attorney, wills, healthcare powers of attorney, and other legal documents. Each of these documents designates a person or an entity to carry out certain duties for the person who creates and signs the document. These fiduciary roles have different names depending on the type of document that grants the authority. In Michigan, the fiduciary in a will is called the personal representative, while the fiduciary in a trust is called a trustee. The fiduciary acting through a power of attorney is called an agent or attorney in fact, and the fiduciary acting under authority of a healthcare power of attorney is called the patient advocate.
You may have a disabled family member or trusted friend that you wish to consider for one or more of these important roles. In general, a disabled individual can serve in any of these fiduciary roles as long as their disability does not materially interfere with their ability to carry out the legal responsibilities and duties imposed on them by law.
Legal Requirements for Naming a Fiduciary
Michigan is one of the many states that have adopted some or all of the model legislation in the Uniform Trust Code (UTC). Although state law can vary on certain important points, the laws are generally similar and provide guidance on the duties and responsibilities of a trustee across the country. Many of the states that have not adopted the UTC nevertheless have provisions in their trust and probate codes similar to those found in the UTC and Uniform Probate Code with respect to who can be named as a fiduciary.
The UTC does not establish a specific legal test for qualifying someone to serve as a trustee. The only requirement is that the person or entity named accept the duties either in writing or by simply performing the duties of the trustee or otherwise indicating acceptance of the trusteeship. Therefore, if an individual names a disabled person as their trustee in Michigan or another UTC state, the named person would be perfectly within their rights to act in that capacity as long as they could accept the appointment in writing or begin acting in the role of a trustee by adequately carrying out their duties regardless of any disability that they might have.
In fact, if any state laws prohibited someone with a physical or mental disability from acting in a fiduciary role merely because they had the disability, that prohibition could easily run afoul of the Americans with Disabilities Act (ADA), federal legislation designed to prevent unjustifiable discrimination against individuals with disabilities.
But what if the named person does not in fact have the physical or mental ability to carry out their duties? In Michigan and other UTC states, a trustee can be removed upon request of a co-trustee, grantor, beneficiary, or the court itself because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively. Most states have laws similar to the UTC with respect to the nomination or removal of an individual in any fiduciary role that might be found in an estate plan.
Practical Considerations
From a practical perspective, if you understand the duties of a trustee or other fiduciary, and if you feel that the person you plan to nominate to serve in that capacity can responsibly carry out those duties, then you have every right to name that person to serve in that role regardless of their disability. For example, if your executor is a blind or deaf adult child, you should ask yourself whether their particular disability will seriously interfere with their ability to carry out their responsibilities in that role. If you are not sure what those responsibilities will be, ask your attorney to explain them. Once you better understand the role, then you will be better prepared to answer that question. Even if your preferred choice for trustee or executor has a disability that will in fact interfere with their ability to carry out their responsibilities, you could consider whether they can obtain sufficient assistance through technology or other means to carry out their duties. If so, then they may still be the best choice.
Conclusion
The bottom line is that a disability in one area, such as blindness or a hearing impairment, may have very little impact on an individual’s ability to carry out the necessary duties of a fiduciary, particularly if they are able to obtain assistance to reduce any obstacles that might otherwise prevent them from fulfilling their role. Failing to consider a trusted family member or professional simply because they have a disability could needlessly deprive you of the perfect choice for that crucial role that is so important to successfully carrying out your estate planning.
