As I gazed out over the mounds of trash that were once my neighbors’ furniture, personal belongings, and parts of their houses, I thought about all the documents my neighbors had lost in Superstorm Sandy. I live close to a river and the ocean, yet for some silly reason, my family and I decided to stay in our house during the storm.
By 9:30 on Monday night, I realized that my house simply wasn’t high enough to prevent water from coming into the living areas of the house, and by 9:45 p.m., we were raising the furniture and our personal belongings off the floor to prevent damage. To say that I never thought the water would reach as high as it did is an understatement.
Prior to Superstorm Sandy, the highest the water ever reached in my neighborhood was during the nor’easter of 1992. Sandy’s tidal waters were four feet higher than the 92 storm.
The water in my house reached a height of about five inches, so things certainly could have been worse. Many of my neighbors measured the water that came into their houses by the foot, not the inch, and most of my neighbors, like me, failed to prepare for water entering their houses; however, unlike me, they weren’t home to prevent their belongings from being ruined by the tidal waters.
As an elder law attorney, I am frequently called upon to draft estate planning documents for clients. I have, quite literally, drafted thousands of last wills and testaments, powers of attorney, and living wills.
After my clients sign their estate planning documents, I provide them with a well-organized binder that contains the primary estate planning documents and many other helpful documents. But no matter how great the binder is that I provide to my clients, it isn’t waterproof.
So, that’s what got me thinking about one classic question that many clients have asked me. “John, where do we keep this binder?”
I always offer to store a client’s last will and testament for them. I have large, fireproof safes in my offices, and I store the client’s Will in one of those safes. I tell the client that if they retain their original Will and if they lose the Will, there is a law that presumes that they revoked their Will. For this reason, I think it is helpful if I retain a client’s Will.
I do not, however, offer to store powers of attorney or living wills for clients. Quite simply, if I stored all of these documents for clients, I would need a much larger storage space. And some clients do retain their original Will notwithstanding my offer to store the Will for them.
When I drafted powers of attorney and living wills for clients, I provide the client with two originals of each document—two original living wills, two original powers of attorney. When the client asks me where they should store their documents, I tell them it might be wise if they retain one original of each document and provide their agent (the person whom they have named to make decisions for them in the event they are incapable of making those decisions for themselves) with the other original.
By doing this, the original documents will be located in two different houses, and it is unlikely that two homes will be damaged at the same time. At least it’s a lot less likely that such an event will occur, though not unthinkable after Superstorm Sandy.
A client may also wish to store his documents in a safe deposit box at a bank, but if the client does this, I always advise that they add someone else’s name to the box. If you put your power of attorney and living will in a safe deposit box and you become incapacitated, how will your power of attorney agent get in the box if their name is not on the box as a co-owner?
You may want to put the power of attorney on file with all of your financial institutions and your living will on file with your doctor. In this way, the places and people who need the documents already have the documents, so if the documents are destroyed, the hardship is substantially mitigated.
People spend considerable time deciding what their wills should say, but far less time thinking about where those documents will be kept. The safest location is not always the most obvious one. An estate plan provides little protection if loved ones are left searching for it when answers are needed most.