As I have said time and time again to many of our clients ... "the only thing worse than having no plan at all is having an outdated plan."
When clients retain our office, or any attorney for that matter, to implement the correct estate legal strategy for their family, there is a tendency to think that the work is done once the family member's sign on the dotted line executed their will or trust, powers of attorney, and living will. Unfortunately, this is simply not true. As I always say ... "KEEP YOUR PLAN UP TO DATE"!!!
Although it is very important to keep your will or trust up to date, it is equally important to keep your power of attorney documents up to date as well. Nothing spells disaster quicker than outdated powers of attorney when an event in life occurs where you need to use them.
Let me share with you three major law changes that will require you to update your power of attorney documents.
Health Insurance Portability and Accountability Act of 1993. This is a law that was enacted back in 1993 regarding, among many aspects, the sharing of your private medical care information. If you Power of Attorney was established prior to 1993, it is very unlikely that it will contain the required HIPAA language allowing your power of attorney agent access to your personal medical care information. If your power of attorney predates 1993, it should be updated.
Tennessee Uniform Healthcare Decisions Act of 2014. This law, originally enacted in 2004, was then amended in 2014. This law allowed for added flexibility when it comes to the decisions of your healthcare agent when it comes to making your healthcare decisions should you become incapacitated. It addresses such issues as organ donation and the withdraw of life support sustaining treatment with the required flexibility to allow your agent to make those decisions. If your power of attorney documents predates 2014, it may be time to have them updated.
Tennessee Uniform Power of Attorney Act of 2010. Tennessee adopted the Uniform Power of Attorney Act in 2010 as part of the Uniform Power of Attorney Act enacted in 2006 to allow powers of attorney to become more universally adopted. There are many, many financial institutions that will refuse to honor a power of attorney if they have reason to believe that it is no longer a valid document. This is why we hear stories of five, ten, fifteen, or even twenty-year-old power of attorney documents not being accepted. In addition, the 2010 law made clear that your agent in your power of attorney document will not be able to sign your name to trust or will amendments, or other estate planning amendments, unless the power is specifically stated in the power of attorney document. This can be incredibly burdensome for your family should the law change requiring you to update your estate documents, but being unable to because you are now incompetent and your power of attorney document does not provide for your agent to make these necessary amendments. If you have a power of attorney that predates 2010, it is a good item to have it amended as well.
As a good rule of thumb, we recommend that you have your Durable Power of Attorney, Healthcare Power of Attorney, and Living Will updated every two or three years to avoid the risk of a bank, financial institution, or hospital rejecting the document.
If you have any questions regarding powers of attorney, or estate planning in general, please contact our office at (615) 370-3010 and we'd be happy to have a discussion with you about the correct estate legal strategy for your family.