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Out-of-Date Estate Documents

| Apr 2, 2020 | Elder Law, Estate Planning |

In our estate planning practice, we often have clients come in who set up their estate planning documents many years—or even decades—ago. Whether it is a Last Will and Testament, a Trust, a Living Will, a Healthcare Power of Attorney, or a Durable Power of Attorney, if the document was done long ago, real problems may lurk around the corner. Many times, the clients signed the documents so long ago that they don’t even remember what they provided or who they named.

First among the problems posed by older documents is the fact that circumstances may have changed. There are a number of examples. Perhaps one of the biggest examples is where the documents name someone that is no longer living, capable, or appropriate. If a Will names “Uncle Harry” to serve as the Personal Representative—the one in charge of your estate—and now Uncle Harry is deceased, that provision needs to be addressed. Uncle Harry cannot administer the estate from the “other side.” Not updating that Will may leave a void in who oversees the estate administration.

Some older documents may have left someone out because the documents were done before the person got married or had children. Or maybe the documents were done when the children were little and they are now grown. Older documents may include someone that you no longer want to be included. We often hear clients say that they didn’t realize that they had named a certain person and that they no longer want that person included. There may have been a falling out or they lost touch with one another but either way, that person needs to go!

Similarly, if the documents were set up when the person was resident in another state than Florida, there may be provisions which are not appropriate to Florida. Sometimes the documents even reference statutory provisions from the other state that would not apply in Florida. What is a Florida bank going to say when presented with a Power of Attorney for a Florida resident which references New Jersey (or any other state) laws? Problems can be expected.

A second set of problems may arise from older documents due to the fact that they are not compliant with current law. As with any area of the law, estate planning is impacted by changes in applicable statutes and rules. Changes in those statutes or rules can impact the effectiveness of those estate documents. One of the examples which we commonly run into involves Durable Power of Attorney instruments (“POA”). In 2011, Florida made changes to key provisions governing POAs. Those POA instruments which were signed before 2011 do not include certain key provisions and that may present problems at a time when the POA is needed. Another example we commonly see is an older Living Will or Healthcare Power of Attorney which lacks HIPAA language. HIPAA governs release of your health information. Having HIPAA authorization language can be vital to your family or loved one being able to communicate with your medical providers.

Setting up your estate documents is vitally important in order to protect yourself and your loved ones. Doesn’t it make sense that it is equally important to keep your documents up-to-date and current?

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