An important element of creating an estate plan is choosing a responsible party to handle your legal, medical, and financial affairs if you become unable to manage them yourself (i.e., become incapacitated) or die. 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.

Naming a Fiduciary Agent and Their Roles

Most estate planning in the United States utilizes a combination of trusts, powers of attorney, wills, healthcare directives, and similar legal documents. Each of these documents designates a person or an entity to carry out certain legal duties as spelled out in the document (often referred to as fiduciary duties) for the person who creates and signs the document. A fiduciary agent has different names depending on the type of document that grants the authority, as summarized in the table below:

Occasionally, an individual or a couple who is working with an attorney to establish their estate plan may ask whether a disabled individual can serve in any, or all, of these roles. The short answer is yes. In general, a disabled individual can serve in any of these fiduciary agents 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 Agent

To help illustrate why this is generally true, we can examine the Uniform Trust Code (UTC), which is model legislation that has been adopted in some form by thirty-five states.^[1] Although these laws can vary on certain important points once adopted by the states, they are generally similar and provide us with guidance on the duties and responsibilities of a trustee across the country. Many of the states that have not adopted the UTC (of which Texas is one) 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.

Texas, much like UTC states, does not establish a specific legal test for qualifying someone to serve as a trustee. The only requirement is that they accept the duties either in writing or by simply performing the duties of the trustee or otherwise indicating acceptance of the trusteeship.^[2] Thus, if an individual names a disabled person as their trustee in Texas 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 Texas laws were to 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),^[3] which is 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 that case, the UTC does provide clear guidance, as it specifically addresses removing a trustee who has proven to be incapable of carrying out their responsibilities. Section 706 of the UTC provides that 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, including Texas, have laws similar to the UTC with respect to the nomination or removal of a fiduciary agent 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 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 your chosen 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 as your fiduciary. 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. If your preferred choice for trustee or executor has a disability that will interfere with their ability to carry out their responsibilities, the next question to ask is 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. In fact, 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 of trust and stewardship that is so important to successfully carrying out your estate planning.

Give Us a Call

Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area.  For more information, and to learn about our firm, please contact us. We look forward to working with you.

^[1] See Trust Code, Enactment Map and Legislation, Unif. L. Comm’n, https://www.uniformlaws.org/committees/community-home?CommunityKey=193ff839-7955-4846-8f3c-ce 74ac23938d (last visited May 20, 2021).

^[2] Unif. Tr. Code § 701(a) (Unif. L. Comm’n 2000) (amended 2005).

^[3] 28 C.F.R. § 35.130.