Hurricane Idalia was a sobering reminder of the need to have ready access to up-to-date estate planning documents, but the approach of a major storm is not the only reason to ensure the proper handling and safeguarding of these important documents. As the storm approached, many of my firm’s clients were asking for copies of their durable powers of attorney and advance medical directives, but it’s important to have copies of these documents handy at all times for unexpected occurrences. In addition to hurricane season, clients should take steps to ensure that their estate planning documents are in order and secure before extended travel, particularly outside of the U.S., and before major medical procedures.
Safeguarding estate planning documents is imperative because durable powers of attorney and other estate planning documents can provide others with access to financial assets and medical records. This is particularly important in Florida because powers of attorney (executed after October 2011) are effective immediately, rather than when an individual becomes incapacitated, which is why people should only appoint agents who they fully know and trust. I almost always recommend that clients provide copies of advance medical directives, durable powers of attorney, and pre-need declarations of guardian to their agents/guardians because agents/guardians should understand what their powers and duties are before they are called to act. If the agents/guardians are not aware of their powers and duties, then they may have difficulties with carrying out the powers and duties which you have entrusted to them.
Some people consider a safe deposit box to be the safest place to hold their original estate planning documents, but keeping your documents in a safe deposit box may cause issues in the event of incapacity or death. If an individual is the sole lessee of the safe deposit box, then family members or agents can get access to the box, but only after jumping through hoops. After the box lessee dies, Florida statute allows a family member or named personal representative to access the box with a bank employee, in order to search and inventory items, such as insurance policies, Wills, and other estate planning documents. The bank representative can then forward the documents to the appropriate parties and places. Individuals can also add another person as a co-lessee of their safe deposit box, but adding a co-lessee provides unrestricted access to the box, which may not be desirable in all situations. Fiduciaries, such as agents and personal representatives, can be granted specific access to the safe deposit box through estate planning documents, which likely is the best option if that is where estate planning documents are stored.
Alternatively, original estate planning documents may be kept at an attorney’s office, which allows them to be maintained at a secure location and eliminates the need to re-execute the documents, in the event that they are lost or accidentally destroyed. The vast majority of my clients have the firm maintain their original documents for them. That is really the best option because if the documents cannot be found, the presumption is that they were destroyed by the client. It then becomes very difficult and costly to prove the contents of a lost Will, and if someone does not like the Will’s provisions, then they can contest the Will. When my firm maintains durable powers of attorney at the office, we can restrict who gains access to them, and clients can give us instructions to release them only under certain circumstances. In addition to not having to worry about losing original documents, maintaining estate planning documents at a law office also means that it is easy to have copies emailed to banks, and hospitals, or readily available if needed for real estate closings. With today’s technology, individuals can also keep estate planning documents on a USB flash drive or other digital storage device, which makes them very convenient to transport.
Most people don’t think about their estate planning documents, except when faced with a medical situation or potentially catastrophic storm, like Hurricane Idalia, or more pleasantly, when planning an extended vacation. Being diligent about regular reviews of your estate planning documents is as important as safeguarding your documents. My firm recommends that clients review and potentially update their estate planning documents every two to three years, after a major life event (e.g. a birth, a death, a marriage, or a divorce), and following significant legislative changes. Keeping one’s estate planning documents updated and secure can help avert potential headaches in the future.
***Christopher J. Fowler is partner at Norton, Hammersley, Lopez and Skokos (941.954.4691/www.nhlslaw.com), a Sarasota law firm concentrating in estate planning, real estate, business, tax, trial practice, and dispute resolution.