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What Happens When an Estate Plan is Out of Date?

Published August 10, 2017 by Brady Cobin Law Group, PLLC

Life changes, laws change, and estate plans that don’t keep up, create real problems for families.

Many people wait almost two decades between the time that they first have an estate plan created and when they get around to updating it. That’s about the time between having young children and when the kids grow up and leave home. The next time the will is updated is when the couple retires, followed by when the first spouse passes. However, there are other times in life when a will really needs to be updated.

The (Port Huron) Times-Herald says in its recent article, “Why you should update your estate plan,” that there are many reasons to update your estate plan. There are both financial and non-financial personal reasons. There are births, deaths, disabilities, weddings, divorces and retirements. These are all reasons to update your plan. There are also changes in the laws impacting estate plans.

The basics. At a minimum, your essential estate planning documents are a will, a financial power of attorney and a health care power of attorney. Some people also benefit from a trust.

Your financial and health care powers of attorney are combined. In many states, the health care power of attorney statute is separate and distinct from the financial power of attorney statute. Each of them has different requirements, such as when they become effective and who can be a witness. There are different documents to be signed by your financial and health care agents. If you don’t have separate financial and health care powers of attorney, speak with an experienced estate planner who will prepare your estate plan legally and properly.

Your power of attorney doesn’t have a signed acknowledgment or acceptance. In some states, your financial agents in your financial power of attorney are required to sign a one or two-page statutory acknowledgment form that they’re acting on your behalf.

Your health care power of attorney doesn’t include these provisions:

  • Patient Advocate: Appoint a patient advocate and two backups to make medical and mental health care decisions when you are unable to do so.
  • Mental health care powers: This allows your patient advocate to make mental health care decisions, such as those concerning dementia, anxiety, or depression.
  • Health Insurance Portability and Accountability Act (HIPAA): Appoint your patient advocate as your HIPAA representative so they have access to your medical records, can speak with your health care providers and sign releases of those records to other health care or insurance providers.
  • An anatomical gift or organ donation: You can include this as a power for your patient advocate.
  • Living will provision: the instructions that you have for when to withhold or withdraw artificial means of life support at end-of-life.

Your trust isn’t fully funded. If you have a trust, it should be fully funded now while you’re alive and well, not after you are gone, and your beneficiaries are using the probate court process. It involves putting your titled assets in the name of the trust.

Reviewing estate planning documents every four years or so is a good way to be sure that your plan still achieves your overall goals, including maintaining control of assets while you are alive, preparing for yourself and loved ones should you become incapacitated and making sure that when you do, that you’re your assets are distributed according to your wishes.

Reference: The (Port Huron) Times-Herald (June 30, 2017) “Why you should update your estate plan?”

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