With the start of a new year, it’s probably time to brush the dust off of your three-ring binders and review that estate plan you made ten years ago. Really, how often should you review your estate plan? Most estate planning attorneys support what's known as the "5 D's," a series of circumstances that should prompt you to reevaluate your current plan.
If someone you have named as an agent on your Power of Attorney or Health Care Proxy (or someone you named as personal representative in your Will) passes away, you will likely want to revise that document. Even if you have alternate agents listed, it is a good idea to remove the deceased individual and appoint a new one.
What about if a beneficiary of your Last Will and Testament passes away? Well, again, even if you have contingent beneficiaries listed, you should consider revising your Will. You want to make sure that everything is in order so that things can progress as smoothly as possible for your loved ones once you pass away.
Additionally, the passing of one of your beneficiaries could raise new concerns as well; for example, what if that individual has minor children, or children with special needs? It may be necessary to have the assets that were going to pass to the deceased individual to now be held in a trust for their children. All of these things should be discussed with a qualified attorney.
If you or your spouse are diagnosed with a serious illness, it is definitely time to review your estate plan. Of particular concern may be that the diagnosis indicates that you are likely to require full-time care in the future, or if your illness is terminal. Priorities change under these circumstances, and an estate plan that suited your needs when you were healthy may not best serve them now.
Depending on your individual situation, you may want to create an irrevocable trust, shift assets, transfer your home, or any other number of strategies. All of this falls under the umbrella of long-term care planning, which requires the assistance of an experienced elder law attorney, and not just an estate planner.
As a side note, if you are healthy but one of your family members or beneficiaries receives a serious diagnosis, it may be worth reaching out to your attorney to see if any changes need to be made, particularly if that family member will be seeking government benefits such as Medicaid or Social Security Disability.
Similar to Diagnosis, you should review your estate plan if you or your spouse begin to seriously decline in health. Hopefully you will have already made plans for the possibility of needing long-term care, but whether or not you have pre-planned there are strategies an elder law attorney can put in place to assist you during a decline. It is understandably a stressful time for you and your loved ones, and having an experienced guide can help in innumerable ways.
What if I need more help at home than my spouse can give me? Can I pay my child for helping me at home? Should I move into an assisted living facility? What if I have to enter a nursing home? Do I have to give all of my assets to the nursing home in order to qualify for MassHealth benefits? Can I keep my home?
All of these are questions that an elder law attorney can answer for you.
If you have gotten divorced since your estate plan was made, you will need to update your documents.
Not only will you most likely want to change your agents for your Power of Attorney and Health Care Proxy, but you should also update your Last Will and Testament. Even if you are retaining a good relationship with your ex-spouse and want to leave some of your assets to him/her, you will need to specify that in your Will, because otherwise it will be brought into question whether that is still what you want to do.
For similar reasons, the above also applies if you created your estate plan when you were single but you are now married or in a long-term committed relationship. You may want to update your Power of Attorney and Health Care Proxy and should revise your Will.
Finally, if none of the above have applied to you over the course of ten years (good job!), the passing of a decade should be a signal to review and possibly revise your estate plan. The majority of estate planning attorneys agree that you should really update your durable power of attorney and health care proxy every five years.
Laws are constantly evolving, as are your individual circumstances, so documents should be freshened up. At Elder Law Solutions, we recommend that all of our clients redo their Powers of Attorney and Health Care Proxies every five years, 1) because laws change and 2) because financial or medical institutions can bring your documents into question if they feel they are "too old," wondering if they still reflect your current wishes. You do not want to end up in a situation where you cannot communicate or act for yourself and your loved one is denied access to your financial or medical information over a technicality and bureaucracy.
In conclusion, estate plans are not just a one-and-done thing. They should be adapted to work for you at every stage of life. So, if one or more of the “5 D’s” applies to you, dust off that binder and give us a call.