Putting together 1) plans for taking care of those you love once you pass
away as well as 2) plans for taking care of yourself if you become incapacitated
may not be at the top of your “to do” list. Once they do rise
to the top of the “to do” list and you take care of these
difficult, but oh so necessary tasks, you may want to jump for joy that
you never have to face these tasks again.
However, don’t lull yourself into a false sense of security. Just
as life changes, estate and incapacity plans need to change. An estate
and incapacity plan that has become outdated because it hasn’t evolved
as your life has evolved can create just as much havoc as no planning at all.
Even if your family situation doesn’t change, the law does. For example,
last fall in Florida there were some major changes made to the durable
power of attorney statute. One of the results is that if the durable power
of attorney does not specifically say that your agent can perform a certain
activity for you, they can’t perform that activity.
If your durable power of attorney was put in place during a time when a
general grant of authority was acceptable, you may no longer have as much
protection from your durable power of attorney as you think you do. It
is still valid, but only to the extent that it specifically lists powers
it is granting to your agent and activities your agent is authorized to
perform on your behalf. If you have a 3 page durable power of attorney
with only a few specifically listed delegated duties, you may be destined
for the guardianship court you thought you were avoiding by signing a
durable power of attorney in the first place.
So, just as your car needs a tune-up and you need an annual physical, your
estate and incapacity plans need a check-up as well. Make room on your
“to do” list for these plans to rotate back into the top spot
on a regular basis. This way you can have confidence that what you want
is what you are still getting.