How Does a Trust Protect an Elderly Person's Assets?

People often create trusts to avoid probate, which requires payment of taxes when assets are inherited through a will. People also create trusts to manage assets for people who cannot handle their finances because of age, illness or disability. A grantor creates a trust, places assets in the trust, appoints a trustee to manage the trust and names a beneficiary to receive the assets of the trust. A testamentary trust is created at the direction of a will after the asset owner’s death. A grantor creates a living trust while he is still alive. Depending on the needs of the elderly person, different types of trusts provide differing levels of asset protection.

A testamentary trust can protect an elderly person’s assets when a spouse or other family member dies leaving a will that creates a testamentary trust. The assets left are transferred into the testamentary trust for the care of the elderly survivor. The testamentary trust protects the elderly person’s assets by authorizing a trustee to make all financial decisions, including those that take advantage of tax benefits and generate additional income through the sale or investment of assets. Since the older person has no control, the assets are in less danger from mistakes or fraud and, with expert financial management, more likely to remain intact throughout the life of the elderly person.

The grantor who creates an irrevocable living trust, one which cannot be revised or revoked without the beneficiary’s permission, loses all right to the assets and the trust once the assets are transferred. Those 65 and older who are eligible for Medicaid sometimes transfer assets into an irrevocable living trust, which is the basis for irrevocable Medicaid trusts. These trusts protect the elderly person from having to dispose of his assets to qualify for Medicaid or nursing-home care. A trust attorney can decide how to set up the trust, including the transfer of assets based on Medicaid rules. The irrevocable Medicaid trust provides income for the elderly person or his spouse, protects certain assets from seizure to pay bills and allows the elderly person to keep his home and some of his other assets and still qualify for Medicaid. The trust may be left intact after the grantor’s death to care for a surviving spouse.

The revocable living trust, which the grantor can revise or revoke at any time without permission of the beneficiary, lets the grantor retain control of her assets. The grantor may serve as trustee or appoint a trustee. The grantor who serves as trustee and beneficiary of the trust names and authorizes a successor trustee to dispose of the trust’s assets if she dies or is incapacitated. The revocable living trust provides another layer of asset protection since it becomes irrevocable when the grantor dies or becomes incapacitated. An appointed trustee affords a higher level or asset protection as the grantor ages. The trust makes it more difficult for family to take control of or misappropriate the older person’s assets, since only a court of law can revoke a trust over the grantor’s objections or find the elderly person incompetent to manage his assets.