Estate and elder planning documents: Do the documents work if no one else knows they exist?



So, you have done all of the hard work for your estate and elder planning. You have listened to counsel and thoughtfully considered what you might want to sign, and who to appoint in a durable power of attorney, health care proxy, a last will and testament, or possibly even a trust or two. You have reviewed the documents and agonized about who, what, when, etc. You sat through the document signing and determined where the original documents will be stored. You have even paid the legal bill in full. So, finally, you can have peace of mind, right? Well, close, but not yet finished -- as I am now learning. 

In the past few months I have come upon a variation of an issue which has affected three different clients – and to the disadvantage of each one. The point of similarity among them is that each client was single or without another “loved one” living just around the corner, or without someone with whom they shared confidences or at chatted between themselves, you know that, “my lawyer says, ….”

So as a relatively healthy 50, 60, or 70 year old you have dutifully signed your health care proxy. Quite possibly even the people you nominated as your health care agent signed the document, too. But then it gets stored “safely” somewhere so that you will have it in a time of need. Fast forward: 5, 10, or even 15 years later, when your house is a bit more cluttered, and even worse, your memory is slipping away. Or perhaps your mind is still quite agile, but you get into an accident which impedes the mind. If you not provided your primary care physician, and/or local hospital with the signed health care proxy, and you cannot remember the location of the one that was previously signed, all of your good intentions could lead you back to a Court or signing another document which really does not provide as you would have preferred. 

It is quite true that I encourage client to consider leaving original documents with us for storage, or remind them that if a safe deposit box is used, to have another name on the box so that someone can access documents if necessary. What I am learning however, is that even if your attorney retains the original, if the “client” does not share with someone who the lawyer is, or where to locate documents, then the angst involved in creating them may have been a wasted exercise. 

You must share the information or the location of information with loved ones, a trusted neighbor, or leave a trail to the documents posted on the refrigerator. If you want a bit more privacy, then perhaps at least post the business card for your attorney on the refrigerator noting on it: Please contact… (or something like that.) At least give someone a running start to be able to track down information. 

My point? Each of the three older clients, regrettably came to suffer memory impairment, and at that next stage of life when they were asked if paperwork had been signed, they could not recall, or locate the forms. 

For these elders, certain legal action to control the elder’s funds was initiated by an elder-services agency, and I didn’t see the legal notice in the newspaper. In the end, although we had all of the necessary paperwork lined up for a nephew to help and manage, because the elder had not shared the paperwork, or left it in a place that was logical to others, an opportunity to have family help was denied. Further, once the agency came in, because it did not know about other plans that had been made, the elder was transferred to a long term care facility and her home was “cleaned-out” with all items sold. 

I have got to think that if the elder had posted information about the location of her documents, or told her best friends about them, or even posted my business card on the refrigerator, in a similar fashion to her prescriptions, that the situation would have had a much different result. 

The same holds true for your health care proxy. Even if you are currently healthy and functional, take the time to send a copy to your primary care physician. Consider making a note on your refrigerator about who to contact for personal and estate planning papers. Without this guideline or information, agencies or other family members can only try their best, but they frequently do miss the mark. Where many of us have seen the “File of Life,” which holds medical information, consider making a parallel chart or statement for your pivotal legal documents. 

Unlike a typical business contract where there are two parties involved from the beginning, many estate and elder planning documents are much more one-sided and do not require any one else to be involved until a much later point in time. So although many of these documents may be valid from the moment of signing, where someone else is not responsible for you or to you, think about the practical side and take steps to publish the document or share the whereabouts of the document with good friends, family, or even leave some clues in plain sight, otherwise it might be like a tree falling in the forest. Can you hear me?


About the Author:

Attorney Lisa L. Halbert is an associate with the law firm of Bacon Wilson, P.C. with offices in Springfield, Massachusetts and throughout Western Massachusetts.  Lisa is a member of the firm’s estate planning, elder and real estate departments. She is especially focused on matters relating to asset protection.  You may reach Attorney Halbert at (413) 584-1287.