When to consider changing your end-of-life documents
Everyone needs certain end-of-life documents – a will, a durable/financial power of attorney, a health care power of attorney, a living will/advance directive and HIPAA release forms. Many people sign these documents and think they never have to think about them again. It is not prudent to execute/sign these documents and hide them away and forget about them. Just as your life will have twists and turns requiring modifications to your life plan, these same twists and turns may require changes in your end-of-life documents. This article will describe life changes when you should consider modifying and maybe replacing your current documents.
Will. You should consider changing your will if 1) a recipient in your current will has died or a new person has entered your family by birth, adoption or marriage, 2) an executor in your current will dies or becomes incompetent, 3) you want to change beneficiaries, trustees or executors for any reason, or 4) you move to another state. Many states have default provisions for accounting for new spouses or children who are not contained in a will and these defaults will probably not be what you would have wanted. States also have default provisions for removing ex-spouses and replacing incompetent or dead executors and trustees and these provisions may also not be to your liking. Each state has its own signature requirements and your current state may not accept a will that does not meet its requirements.
Durable/Financial Power-of-Attorney. You should consider changing your durable/financial power-of-attorney when 1) you wish to change your designated attorney-in-fact or your nominated guardian, 2) you move to another state, 3) your designated agent has died or become incompetent, or 4) you get married or divorced. As with wills, states each have their own signature requirements and your existing signature may not be valid in your new state. Also, incompetent individuals do not have the power to act for others. If your designated agent becomes incompetent then the power of attorney is invalid and your family may need to go through guardianship proceedings to take over your financial affairs. Finally, there are usually no default provisions for power-of- attorneys to disqualify an ex-spouse or automatically include a new spouse. You must modify your power-of-attorney documents to account for these changes.
Health Care Power-of-Attorney/Advance Directive/Living Will. You should consider changing your health care power-of-attorney when 1) you move to another state, 2) you change doctors, 3) someone close to you has died, 4) you get diagnosed with a new disease with long-term effects, 5) you get married or divorced, 6) your designated agent dies or becomes incompetent, or 7) you want to change your designated agent. As with other documents, each state has their own forms and your form may not be accepted in your new state. If someone close to you dies it may provide additional information to you on how you want to be cared for before your death. If you were healthy when you drafted your existing health care power of attorney you were making hypothetical decisions. When it becomes less hypothetical some individuals develop different ideas on how they want to be cared for as they age. As with the durable power of attorney there are no provisions for automatically excluding an ex-spouse or including a new one. You must change your documents to incorporate these changes. Finally there are no provisions for a court to designate someone to replace a deceased or incompetent agent. If your agent(s) die or become incompetent your loved ones may have to go through guardianship to make health care decisions for you when you can’t.
HIPAA release form. You may wish to change your HIPAA release form when 1) you get married or divorced or 2) your agent becomes incompetent or dies. Similar to the documents mentioned above there are usually no provisions for automatically excluding an ex-spouse or including a new one. You must modify your documents to reflect these changes in your life. Nor are their provisions for a court to replace incompetent or deceased agents. Your family may have to go to court to get permission to see your medical records.
Finally, even if none of these changes have occurred in your life you should visit a attorney every 5 years for them to review your current documents to see if changes are needed because of new legislation or court decisions. Provisions that were considered effective several years ago may have new legal interpretations because of court decisions about other individual’s documents. Also, as attorneys have experience following new legislation, they develop best practices for individuals to achieve their wishes. The legal landscape often changes enough to require modifications in these documents within this 5 year time frame.
In summary, while it is very important for everyone to have these documents, it is equally important for you to keep them up-to-date to reflect your current situation. Please review your documents regularly to determine if any changes are needed.
Note: This is not legal advice. I am not your attorney. Some of this information will vary in your state. This provides general information and a start in deciding what to tell your lawyer.