Q: How often should I meet with my lawyer to review my estate planning documents?
A: A good rule of thumb is to review your documents every 3-5 years. Also, additional review may be warranted if there are significant life changes including altered health status for you or your loved ones, a death in the family, a new birth, or a divorce.
When reviewing your plan, here are some things to consider: Do you remember who you named as your healthcare proxy? Is that person still the best person to serve in this role? Are successors named? Every new health care proxy supersedes the prior one. How many powers of attorney do you have? Are they all consistent? It is not uncommon for individuals to execute new powers of attorney without revoking the prior ones. This can create a huge amount of confusion amongst multiple agents. For instance, mom creates a power of attorney in 2015 naming her son as agent. A few years later, she sells her house and gives her daughter a power of attorney. Now there are two documents that are not consistent and this can be a recipe for disaster. We call this the “dueling” powers of attorney.
Too often we find that clients execute documents and forget about them. We want to avoid this because when emergency strikes, you want to be sure the documents reflect your wishes and do not leave your agents with ambiguities. Do not wait until this dire time to find out that you do not have the proper documentation in place.
We recently helped the family of a woman who suffered a stroke, leaving her with severely diminished mental capacity. The agent under the power of attorney came to the office to learn about Medicaid planning to help with the cost of long-term nursing facility care. As part of this planning, assets needed to be transferred to avoid completely depleting the assets on nursing home care, which in Suffolk County is $16,000-$18,000 per month. Unfortunately, the power of attorney was not done by an elder care lawyer. It did not have any of the powers that she needed to do this complex type of planning. The family is now facing the reality that they may need to seek a guardianship in Supreme Court; a frustrating, costly, and time-consuming process that could have been avoided with a more comprehensive power of attorney. Not all powers of attorney are the same.
What about your wills? We have clients come in with wills that have cobwebs on them. The documents are so old that they name guardians for their children who are now adults themselves, with children or grandchildren of their own. These outdated documents name executors and trustees that are no longer alive or, if living, not in touch with the family anymore, unable to act or unwilling to act.
Similarly, do you have a trust as part of your estate plan? If so, these should be reviewed to ensure your wishes will be followed. You also want to make sure the terms comply with the current state of the law and estate tax exemptions.
If you have not reviewed your documents, now is the time.