Where do I keep my estate planning documents? It’s a question I get a lot from clients, and it’s an important question.
It is very important that every person over the age of eighteen have the three basic estate planning documents—a last will and testament, a financial power of attorney, and an advanced healthcare directive. When you are over the age of eighteen, no person other than you can make decisions (healthcare decisions, financial decision, residential decisions) for you. Not your spouse. Not your children. No one. You are the only person who can make decisions for you.
And typically, we think that’s a good thing. We don’t want other people making decisions for us. We value our autonomy, but when we cannot make decisions for ourselves because of physical or mental infirmities, we typically would want our loved ones (our spouse, our children) to be able to make decisions for us.
For this reason, most elder law attorneys, such as me, recommend that you sign a last will and testament, a financial power of attorney, and an advanced healthcare directive. Most clients will name their spouse as their primary agent and their children as their secondary agents.
If the client engages the services of an experienced elder law attorney, I am rather confident that their estate planning documents will be well-drafted. By well-drafted, I mean that the client’s estate planning documents will be drafted in such a way that their family member can make any decision the family member needs to make for the client if the client needs someone to make decisions for him.
But what if the family cannot find the client’s estate planning documents? It’s great to have well-drafted estate planning documents, but the documents are of no value if the people who need the documents cannot find the documents.
When a client engages my services, I will give the client two original financial powers of attorney and two original advanced healthcare directives. I recommend that my clients give their physician a copy of their advanced healthcare directive so the document can be entered as part of their medical record. If the client goes to the hospital, I recommend that the client bring the advanced healthcare directive with them, so the document can be entered into their records with the hospital.
The financial power of attorney should be provided to the banks where the client has accounts and to the brokerage firms where the client has accounts. In this way, the financial power of attorney can be entered as part of the client’s records; moreover, if the financial institution has their own power of attorney document that the financial institution wants its clients to sign, this issue can be brought up and the financial institution’s power of attorney can be signed by the client.
As for the Will, I will offer to retain the original Will for the client in my offices. If the client asks me to retain the Will, I provide the client with a copy of his Will.
Many clients will ask “What if something happens to you?” While the question is a bit disturbing to me, it is a fair question. (And since I spend my days asking clients who they want to get their money if they die, I have to concede that my clients should get to ask me the same basic question.)
If something were to happen to me, then my office would have to either give back all the Wills or give the Wills to another experienced elder law attorney who would have to inform the client that he/she has the original Will.
It typically is not advisable to put your estate planning documents in a safe deposit box unless multiple, other family members are named on the box and can access the box without your consent.
Estate plans only work when the right people can find the right documents at the right time. Organizing and safely storing important legal, financial, and medical information now can spare families significant stress and confusion during emergencies.