Phase One of a Revocable Living Trust: The Trust maker is Alive and Well
The trust’s formation documents should include specific provisions allowing the trust maker to invest and spend the trust assets for his benefit during his lifetime. He can go about business as usual with the assets that have been transferred or funded into the trust’s ownership, assuming he hasn’t appointed someone else to act as trustee. In this case, the trustee would typically take direction from him.

The Trust maker reserves the right to undo a revocable trust — thus the term “revocable.” He can re-claim assets he’s placed into it, divert the trust’s income to himself or another beneficiary, sell the assets, or place more assets into it. He maintains final control.
A revocable living trust does not have its taxpayer identification number, unlike an irrevocable trust — one where the trust-maker gives up all control. A revocable trust and its trust-maker share the same Social Security number. Trust taxes are filed on the trust maker’s Form 1040, just as though he continued to hold ownership of the assets personally.

Phase Two of a Revocable Living Trust: The Trust-maker Becomes Mentally Incapacitated
The trust agreement should also specify what happens if the trust-maker becomes mentally incapacitated and can no longer manage his affairs and those of the trust. The trust documents should name a “successor trustee,” someone to step in and take over management of the trust if the trust-maker is determined to be mentally incompetent. The successor trustee can then manage the trust-maker’s finances and the assets that have been placed into the trust.

While a Durable Power of Attorney is effective at the time of execution, the Health Care Surrogate requires that you lack capacity to make your own decisions. Your attending physician (and sometimes a second physician) must determine that you are unable to make health care decisions before the surrogate can take over.

A Designation of Health Care Surrogate is intended to provide direction and authority, helping to avoid conflicts and confusion over your care. You cannot assume a physician has the authority to make health care decisions for you and (unless the patient is a minor) family members do not have the legal right to make decisions for you.

Expect families, and even physicians, to disagree about treatment options, especially in cases where you have remarried or family members have become estranged. The Designation of Health Care Surrogate puts these arguments to rest.

You can choose any person to make health care decisions for you and your loved ones will need to respect your wishes. When deciding whom to choose, many people worry about placing an undue burden on a family member, such as an adult child, during an emotional time. However, knowing your specific wishes will help make decisions easier.

Some people consider naming someone outside the family to avoid appearing to play favorites between family members. However, keep in mind that your health care surrogate will make life and death decisions for you—decisions best left to those closest to you, such as your spouse or children.

You may trust your lawyer, your accountant, financial advisor or other professionals. You may even be emotionally attached or feel indebted to a caregiver, but leaving end-of-life decisions to any of these individuals rarely ends well, and is often challenged in court by family members.

Ultimately, giving careful thought about whom to designate, and having a Designation of Health Care Surrogate on file, can provide welcome direction and significantly reduce infighting among family members and confusion by medical professionals regarding treatment decisions.

What happens if you have not designated a health care surrogate? If you are incapacitated, either by an illness or accident, a Florida judge will select a court-appointed guardian. These proceedings are not only costly, but loss of your privacy and selection of a less desirable guardian is a common result. It is easy to avoid this result by taking the time to sign a Designation of Health Care Surrogate.