Occasionally, we will receive requests from clients and prospective clients regarding the rules when it comes to terminating or amending your health care power of attorney, financial power of attorney, and living will declaration. Throughout life, there may be changes in life circumstances and/or changes in the law that require an individual to amend or even terminate his or her existing disability legal documents.
Disability legal documents can be terminated in any of the number of following ways: (1) tearing up and destroying the document or (2) executing new disability legal documents that are signed and executed on a date more recent than the previous disability legal documents. A later in time executed disability legal document will revoke the previously signed and executed document.
However, in order to avoid confusion, you should destroy the previous document, as well as, execute and sign new disability legal documents after certain life changes and/or changes in the law.
Although, you may be asking yourself, what changes in my life may warrant the changing of my disability legal documents. Well, life certainly does get in the way for us most of the time, and putting your estate legal plan in place is usually the last on the list for many families and individuals. However, there is one common example of the tragedy of the failure to update your disability legal documents.
John and Jane had been married for a number of years. Now, John and Jane, just like many families, had their estate legal plan put in place in order to make things simple for their family. John and Jane had all the necessary documents including a revocable living trust, last will and testaments, power of attorneys, living wills, and health care power of attorneys. However, two years after putting all of this in place, John passed away. Now, because John and Jane had a revocable living trust, and all the assets were properly titled in the name of their trust, everything was simple for their family, and probate was avoided.
After John’s death, Jane never went through the process to have her estate legal plan updated, and about two years ago, Jane suffered a heart attack and was unconscious and incapacitated in the hospital. However, Jane’s Health Care Power of Attorney and Durable Power of Attorney listed John as her attorney-in-fact and listed no back-ups. Although, Jane survived the heart attack, Jane was never the same and was confined to a wheel chair requiring 24-hour nursing home care.
As a result, Jane’s family members had to go to court and initiate a guardianship proceeding in order to have a guardian appointed to make all these financial and healthcare decisions for Jane in the future. This was not too complex as all parties were in agreement that Katie, Jane’s oldest daughter, should be the guardian. However, it did take five weeks before Jane got the orders appointing her as guardian over her mother and authorizing her to make all the important financial and healthcare decisions that needed to be made. Now, had Jane updated her disability legal documents, or even named a back-up individual other than her husband, all of these delays and stresses on Jane’s family never would have occurred.