Drafting estate planning documents is an important part of having the proper plans in place for the future, especially in the event of becoming incapacitated. Many people harbor a fear of what will happen to them and their assets without the protection of certain types of trusts. A living trust is useful in such a circumstance. Knowing its intricacies is integral to deciding if it is the right alternative. A person who is his or her own trustee should have a successor trustee in the event of incapacitation. If there is no living trust, another person would have to manage the assets.
How the assets are allocated would determine who manages the assets. If the assets were separate or community property and if there was a durable power of attorney will be essential to this process. A person who is married will have the assets that were acquired during the marriage viewed as community property. However, property that was owned before the marriage or items that were a gift or inheritance will be separate property. Community property can be managed by the spouse if he or she is deemed competent. A person who is not married or has separate property would be managed by an attorney-in-fact with a durable power of attorney. Failure to plan for this potential eventuality will leave the assets in the hands of the probate court, otherwise known as a conservatorship.