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Old Estate Planning Documents in Florida [Problems and Solutions]

Outdated Estate Planning Documents [Problems and Solutions Updated!}

The problem with really old estate planning documents in Florida (or other states) is that they are more likely to become inaccurate or unreliable as time passes.

Changes in the Law and Old Estate Planning Documents

Your Old Estate Planning Documents May Be Legally Incorrect or Obsolete in Florida Due to Changes in Circumstances or Updates in the Law.

Problems with Outdated Durable Powers of Attorney in Florida

For example, a few years ago, many state legislatures across the country began looking at their statutes that regulated durable powers of attorney in Florida and many other states, including Florida, completely revised the these laws.

Defining A Florida Durable Power of Attorney

As a bit of general background, a power of attorney allows another person to make business decisions on your behalf and there are many different types.  In the estate planning world, the most common type is a “Durable Power of Attorney”.  This is a common document in estate planning because the “durable” nature of this power of attorney provides that it does not terminate upon one’s disability, whereas other types of powers of attorney would in fact terminate upon disability.  Thus, a Durable Power of Attorney, provides you with some protection in the event you are disabled and cannot manage your own business decisions.

Changes to the Florida Durable Power of Attorney Laws

When the Florida legislature decided to update the laws governing durable powers of attorney they were following a trend being pursued in a number of other states. The changes were as follows:

1.  Virtually eliminated the option to provide a “springing” power of attorney.

A springing power of attorney allows the power of attorney to become effective only upon disability such that it “springs” from the disability.  The Florida legislative changes mandated that this type of power of attorney was no longer permitted by Florida law.

2.  Required that all the specific powers in the durable power of attorney document must now separately initialed by the party granting the power.  The purpose of this change was to assure that the grantor was aware of the specific powers that he or she was giving away.

While the change in legislation did not invalidate an old powers of attorney already signed, it did raise a question of whether the old document should be deemed reliable or at least questioned.   Most notably banking and financial institutions are likely to scrutinize any power of attorney, and I should point out that most of these institutions have highly paid, well motivated and somewhat paranoid legal departments.

Problems With an Outdated Last Will and Testament

Old Wills May Face Difficulty Meeting Modern Day Legal Formalities in Florida And Witnesses May Become Deceased and Thus Impossible To Locate.

Defining a Last Will and Testament in Florida

As I’ve mentioned often, your last will and testament in Florida (and most states) is basically a set of instructions for the probate court.  In order for the probate court to rely upon your will, it must find that the document itself contains all of the formalities needed to confirm its reliability.  

Although this varies a bit from state to state, generally a last will must be signed by the testator (the one making the will) and must be affirmed by 2 witnesses.  Some states also require that the will be notarized or recommend that it should be, and in some jurisdictions one of the witnesses may be the notary.  There are a few other formalities in the drafting such as the document stating “this is my last will” but you get the picture.

Common Problems with an Old Last Will and Testament 

The problem with an old will, aside from the fact that it may become illegible, is that the witnesses may be deceased.  This can become a big problem because older wills sometimes do not have what is called a “self proving affidavit”.  So, if a will is not notarized with an affidavit and the witnesses cannot be located, it becomes very problematic for the court to confirm that the will is authentic and this means that the will might not be admitted by the probate court.  You can probably guess that if the will is not admitted, the state probate statutes will then determine what happens with the estate.  The moral of this sad story is to make sure and update your will  every 5-10 years just to stay current and avoid potential problems.

Problems with Outdated Medical Directives and Living Wills in Florida

Old Medical Directives May Not Comply With Modern Florida Statutes or May Become Incompatible With Florida HIPPA Laws.

Defining Florida Medical Directives

A Florida medical directive refers to certain documents that are directives for one’s medical care and treatment in the event that he or she cannot make their own medical decisions.  These documents include the “living will” and the “designation of healthcare surrogate”.  The living will is about one’s preference for lifesaving treatment if dire medical circumstances arise which are normally defined as a “persistent vegetative state”, an “irreversible end stage condition” or a “terminal condition”.  Currently, the medical community is duty bound to administer all reasonable measures to prolong life, so an authorization to withhold such treatment in these certain circumstances is needed.   Additionally, most states have a “statutory” proscribed form that establishes what is a minimally acceptable living will in that state.

The designation of healthcare surrogate, as it is most commonly known, appoints an individual (or individuals) to act on behalf of someone for the purpose of enforcing his/her living will.  The healthcare surrogate is also sometimes called a healthcare power of attorney.

Common Problem with Old Medical Directives and Living Wills

Similar to powers of attorney, old medical directives may be deemed unreliable by hospitals, doctors and administrators in the medical profession.  Most institutions are risk averse in today’s lawsuit happy society and doctors and hospitals are no exception.  The various ways that these people risk a lawsuit include making a medical decision without proper authorization or outside the scope of that authorization.  Thus, if medical directives are perceived as outdated, illegible or vague, they may be deemed unreliable.  Similarly, if medical directives are at odds with the current statutorily accepted format within the state, it is more likely that they could be found unreliable.  The result could be that families could incur 10’s of thousands of dollars in medical bills that would have been deemed not desired, not productive and not necessary.

How Changes in Family of Other Relationships Impact Old Estate Planning Documents

Old Estate Planning Documents May Become Obsolete Due To Changes With Family Or Other Relationships.

With the passage of time, new loved ones are born and loved ones pass.   Similarly, friends and business colleagues, move, go out of business and eventually pass away.  All of these circumstances can lead to substantial changes in one’s estate plan.  For example, if the person designated as a successor trustee passes away, an updated plan may be required to avoid confusion upon the death of the trust maker.  Similarly, if someone who is appointed the Executor of a will moves to another state, he or she may be disqualified if not related to the deceased.  It is important to update your estate plan regularly to keep track of these kinds of changes in circumstances.

How Changes in Living Situation Impact Old Estate Planning Documents

Old Estate Planning Documents May Be Incompatible With Your Current State of Residence.

Among the most important changes in circumstances to impact an estate plan, is of course a change in one’s state of residence.  For many of the reasons discussed above, including the state specific laws that apply to durable powers of attorney and medical directives, a change in state of residence should prompt a review of one’s estate plan.  Although one state will generally accept estate documents prepared in another state, the same issues of reliability can arise and are perhaps heightened when old documents were prepared in another state.

How Financial Changes Impact Old Estate Planning Documents

Old Estate Planning Documents May Become Obsolete Due To Changes In The Financial Situation of the Estate.

If the value of the estate substantially decreases or increases, the entire estate plan may become inappropriate.  A common example is where dollar amounts are given to various beneficiaries and the estate is depleted years later so that there isn’t enough money in the estate to cover expenses AND the various bequests.  20/20 hindsight reveals that the estate plan should have been updated when the estate size diminished and yet this often does not occur. Financial changes are especially relevant is federal estate tax planning has been of concern or if estate planning with revocable trusts or using irrevocable trusts for estate planning as been utilized for any number of reason. 

Think of the kinds of changes discussed above as common examples and certainly not all inclusive and this why it is important to schedule regular estate planning checkups.  The fact is that estate documents are living documents that are not static but rather depend upon the current circumstances that they are tasked with directing.   While most estate planning attorneys will attempt to prepare documents that will remain flexible as changes occur, the kinds of life changes discussed can derail an estate plan in a worse case scenarios.  Thus, the best policy, as with most important areas of life, is to remain proactively involved in your estate planning and have a regular review with your favorite estate planning attorney every 2 years.

Steve Gibbs, Esq.

This is an updated version of an original post dated December 5, 2016. 

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