Clients often say they want their powers of attorney to lie dormant until they become incapacitated, at which point the documents will "spring" into effect. That certainly makes sense; however, the problem is that once they become incapacitated, their agent has to continually prove that fact, which would likely require a doctor's opinion that's probably got to be updated every few weeks or months. Instead of that hassle, I recommend that they control the use of their POAs by only handing out copies to their agent - or authorizing someone else to do so - once they actually need the assistance. We often receive calls from those agents who are requesting copies of the documents, and we always confirm with the respective clients (or someone else with accurate knowledge of the situation) before we release the copies. Remember, copies are just as effective and powerful as the originals, so control of the copies controls their use.

On the other hand, copies of health care directives should be cast far and wide, both to the designated agents themselves and to all medical personnel a client deals with. That's because those documents only become effective once a person becomes incapacitated and unable to make medical and health care decisions for him/herself. And if you have an older document that doesn't include your agents' phone numbers in it, that one should be updated with those numbers in case there's an emergency requiring immediate contact. Under those circumstances, medical personnel will need to call - not write a letter - and they'll need to know not only who to call but how to do it.

New clients often arrive with wills they've downloaded from one of the online legal services or that they may have created from one that their parents had. It's not necessarily that those documents can't be effective, but even lawyers who don't do this kind of work can mess up their plans - so, when former Chief Justice Warren Burger died some years ago, it was discovered that his estate planning abilities didn't match his knowledge of constitutional law. This comment stems from a will we recently saw where the spouse of a decedent signed as a witness to the document, which doesn't invalidate the will but does negate any interest the spouse may have been intended to receive. Consequently, the estate will end up passing to other beneficiaries who were never intended to receive major portions of the estate assets.

Many clients now see the advantage of establishing revocable trusts to hold their assets and keep them out of the court-supervised probate process. That process can take at least a year to navigate, require approval of everything the executor does along the way, and cost several orders of magnitude in legal expenses more than administering a trust that holds the decedent's assets. The problem here is that while clients are often quite meticulous about their trust provisions, they are much less careful about making sure that all their assets are properly titled in the trust name. Even a car or small bank account that's not properly dealt with can trigger those dreaded probate entanglements in order just to sell the car or transfer it to the decedent's nephew (or NHPR!) or to close out the bank account. So, if this comment is causing a bit of agita, I suggest you put "complete funding of my revocable trust" near the top of your 2023 resolutions.

Finally, even clients who've covered all the bases I've mentioned still balk at having to go through the whole process again just a few years after completing it the first time. Here are the rules of thumb: (1) wills and trusts don't have a shelf life that requires constant updates, unless there are real changes that need to be made - i.e., their executor or trustee is no longer able to serve and they need to designate a new one; their family dynamics have changed and a beneficiary is now more - or less - ready to receive what has been provided for them; or they've moved from one state to another and the documents from their former state aren't quite as appropriate where they now live; (2) on the other hand, durable powers of attorney and health care directives do get stale after about 10 years and ought to be refreshed, so there's no pushback from anyone when the critical time comes to use them.