Responsibility, Not Love, Is Key Criteria

            Most of us, most of the time, love our children equally.  During the preparation of wills and trusts, clients regularly express a desire to divide their property equally among their children. 

            “We love them all the same and we wish for them to share equally in what we leave behind,” is a common expression by clients.  However, when they are asked to designate one of their offspring to serve as the agent for a durable power of attorney, or as the personal representative for their estate, love should not be the controlling criteria. 

Neither should it be age, nor gender.  Rather, it should be responsibility.  “Pick the most responsible one,” I advise, “the one who keeps the checkbook balanced, organizes the family reunions, and doesn’t forget your anniversary.”   And that may not be the family member who is a lawyer, CPA, or high-ranking executive.

            That is the advice I offered a 77-year-old widow who called the USD Senior Legal Helpline (1-800-747-1895; mmyers@usd.edu).  She has two sons and two daughters. One of the daughters is developmentally disabled, in her 40s, and receiving federal and state support in a group home.

            The caller’s only substantial asset is her home, valued at about $100,000.  She said, “When I die, I want the house to be sold and its proceeds shared equally after making some provision for my disabled daughter.  I want someone to do the little extra things I do for her beyond the government support she receives.”

            I recommended that she establish a “supplemental or special needs” trust for her disabled daughter, designating the most responsible offspring as trustee.  “That’s my other daughter,” she said, “she is the only one who spends any time with my disabled daughter.  She is the most responsible one.”

            A supplemental needs trust permits the designation of a limited fund for the benefit of a person who is disabled, even if that person is receiving government benefits.  It “supplements” the support being provided by SSI, Medicaid, or a local government program.  Such monies may be used to support the cost of clothing, beautician services, travel to visit relatives, and activities outside the core benefits under a government program.

            In this case, the “responsible” daughter will be designated as trustee of the supplemental needs trust, the agent under her mother’s durable power of attorney, and the personal representative for her mother’s estate.  Responsibility is a sought-after trait.