Q. I am in my late 80’s and am updating my estate plan. I find I have an important decision to make:  in my Power of Attorney (“POA”) and my Trust, if I ever lose mental capacity should I require the opinion of two doctors, or just one, to certify my incapacity before duties transfer to my Agent or Successor Trustee? Requiring two doctors to sign off would seem to give me greater protection against a “wrong call” by only one. What do you think?

A. That is really an excellent question and my compliments for giving it special thought.

A bit of background:  The most common choice in these matters is to require that two (2) physicians must render an opinion on mental incapacity before responsibility shifts to one’s designated successor.  This approach may make sense for younger individuals, who might reasonably believe that requiring two medical opinions will protect against a “wrong call” by a single physician. Hence, the “two doctor” requirement is typically the default approach in most estate plans.

However, for older persons, or those who – in the future – may need care in a facility, this two-doctor requirement could pose a big problem for one’s family, probably at a time of stress, and may actually make managing one’s financial affairs much more difficult.  Here’s why:

When and if incapacity becomes an issue, it is likely that you, the principal, will then be residing in a care facility, such as a nursing home.  In the nursing home and in some other care facilities, typically only one physician covers the entire facility, visits each patient at a prescribed interval, and directs his or her care. In those situations, it is very difficult to arrange for a visit by a second physician, as there is typically no second doctor who also makes those rounds.

Thus, to comply with a “two doctor requirement” in one’s POA or Trust, your family would need to search for a physician outside the facility who makes “house calls” to nursing home patients, and who is willing to assess you for legal capacity and write an opinion letter based upon that assessment.  It would also be an expense that would not likely be covered by private insurance, Medicare or Medi-Cal. This process can be very difficult for one’s family, especially at a time of stress, and can actually impede the prompt and smooth transfer of responsibility for financial affairs to one’s designated successors.

For these reasons, in our practice we consistently recommend that our clients only require the opinion of only one (1) physician to establish their incapacity. By doing so, we believe that we make the process easier down the road for the client’s family, help to smooth transition to his or her designated successors, and thereby help ensure uninterrupted management of our client’s financial affairs.

In this regard, we typically provide in our legal documents that the client’s incapacity, if it ever occurs, is to be “established by the opinion of one (1) physician, licensed in the state in which the principal then resides, who has examined the principal, and who renders an opinion in writing that the principal is incapable managing his or her own financial affairs.”

You may wish to discuss this matter with your family and with your attorney and consider using the “one (1) physician” requirement for the reasons discussed.