Estate Planning Documents Should Be Updated Now If Over Five Years Old

There may be very good reasons to update your will, trust or other estate planning documents even if they were signed less than five years ago, but there are very specific reason to make changes now if they are older than that.

Durable Power of Attorney: Florida made wholesale changes to the statute governing powers of attorney, effective October 1, 2011. Certain powers that were assumed to be available to the agent under the statute as it existed before then, such as the ability to make gifts, are no longer available unless specific steps are taken. Use of general language authorizing your agent to do anything you could have done is no longer effective in and of itself. Unless there is a good reason to allow your old power of attorney to remain effective, consider updating it to conform to the new statute.

Health Care Advance Directive: As of October 1, 2015, Florida also made significant changes to the statute dealing with Health Care Advance Directives, specifically as related to Health Care Surrogate Designations. For example, the revised statute suggests language providing that the designation shall not be affected by the principal’s subsequent incapacity. Additionally, while the Surrogate’s authority becomes effective when the primary physician determines that the principal is unable to make his or her own health care decisions, the principal can provide in the new document that the Heath Care Surrogate’s authority to receive health care information takes effect immediately. Also, and of particular importance to many, it can provide that any health care decisions the principal makes while possessing capacity shall supersede any decision of the Health Care Surrogate that is in conflict with the principal’s instructions.

Digital Asset Provisions for Wills, Trusts, Powers of Attorney and Guardianships: Effective July 1, 2016, Florida adopted the Florida Fiduciary Access to Digital Assets Act. Now you can decide whether your digital assets should be preserved, distributed to heirs or deleted. But most of all, you can authorize access. If you scan documents or receive financial statements electronically, someone else may not know that they exist. If you have a Facebook account, an AOL account, a blog, email accounts, maintain photos online or otherwise have digital assets, you likely will want your personal representative, trustee or agent under your power of attorney (if you are incapacitated) to be able to access those assets. If you do not provide for access of digital assets in writing, your fiduciaries may be at a serious disadvantage in dealing with the companies that store or control them.

The days of thinking that once you’ve signed your estate planning documents, if there is not a death, divorce or birth, there is no reason to look at them again are gone. We live in a fast paced world and in that world there are constant changes to the law that will affect your documents. In addition to any changes in your personal situation, the new and revised laws above provide strong reasons for you to speak with your estate planning lawyer now to bring your documents up to date.