By: Matthew Getty
We are sometimes asked by clients whether it is necessary to update certain documents, particularly powers of attorney and advance medical directives. A power of attorney is a document that appoints an agent to manage affairs on your behalf. The scope of a power of attorney is usually quite broad, but it does not cover medical care. Your wishes regarding healthcare are set forth in an advance medical directive, which also (usually) appoints an agent to carry out those wishes. In general, all estate planning documents should be reviewed from time to time to make sure that they adapt to changes in the law or changes in your situation. The laws governing both of these documents in Vermont have changed over the years. In fact, the advance medical directive statute is relatively new. Prior to the adoption of that law, medical issues were addressed in two separate documents – a living will and a health care power of attorney.
In addition to changes in the law, it is our experience that the age of a document can impact its effectiveness. There is no law that says these documents expire after a certain amount of time. However, as a practical matter, your agent has to rely on the cooperation of third parties when working on your behalf. Those third parties might not feel comfortable that an old document contains a current representation of your wishes.
Several years ago I was representing a woman in the preparation of an estate plan who related an unsettling anecdote. This woman happened to be the agent under a power of attorney executed by her mother. Her mother had been suffering from Alzheimer’s for a number of years. In fact, the power of attorney was around ten years old. After relying on this document for a decade to manager her mother’s affairs, this woman was suddenly being told by a bank that her authority would no longer be accepted because the document was so old. Of course, her mother was then in no condition to execute a new power of attorney. I was not involved in the resolution of this problem, so unfortunately I do not know how it turned out. I have also heard from someone in the industry that it is common practice for banks not to accept a power of attorney after a couple of years. I suspect that these decisions sometimes change with further consideration. If the bank or other third party could not be convinced to change its mind, however, the only alternative (short of a lawsuit) would be to petition the probate court for an involuntary guardianship – a somewhat laborious and expensive procedure.
The individual involved in this anecdote had done nothing wrong and there was nothing that could have been done to avoid the problem in her case. The anecdote is a powerful illustration, however, of a problem that you can help to avoid by periodically updating your documents.