Q. My wife and I have a Living Trust and related estate planning documents which were prepared some years ago. We were told that we should keep them current. Do you have any advice in terms of when it is time to update or revise them?
A. When your trust was prepared, your attorney probably did his or her best to encourage you to plan for normal contingencies, such as by naming backup beneficiaries and successor trustees in the event your first choices predeceased you or became unable to serve. However, none of us can peer into the future and anticipate all events. The real key to keeping your documents current is to coordinate them with any significant change in your own personal circumstances, and to keep them compliant with any changes in the law.
While certainly not an exclusive list, here is my short list of times when it may be prudent to at least review your trust and related estate planning documents and, where appropriate, seek the guidance of your attorney:
- When there is a change in family circumstances, such as births, deaths, marriages, divorce
- At the beginning signs of incapacity
- When you anticipate the need for long-term care, including the need for a Medi-Cal subsidy to help with the cost
- When you feel it is time to delegate decision-making powers to your successor trustee
- When there is a significant change in your assets and net worth
- When there is a significant change in the tax law that would affect your planning
- When any of your beneficiaries become disabled and apply for public benefits, such as SSI and/or Medi-Cal.
In terms of Advance Healthcare Directives, HIPAA Privacy Authorizations, and Physician Orders for Life-Sustaining Treatment (“POLST”), I would have a different list. With these health-related documents, it is important to keep them current so that your physicians know they reflect your current wishes, especially wishes regarding end-of-life care. With regard to the Health Directive and HIPAA Authorization, I would suggest reaffirming those wishes at least every three years. You might do so by simply attaching an addendum reaffirming your wishes, dating and signing it and asking two disinterested witnesses to sign. Regarding the POLST, I would suggest doing the same but with a frequency of at least once a year, and perhaps every six months depending upon your circumstances. If your agents change addresses and telephone numbers, you might notate their new contact information by way of a dated addendum, rather than by interlineating or writing over their addresses in the original documents.
Generally speaking, I encourage my clients to look at their trust and related documents annually and when any of the above events occur, and to consider a review by their attorney every five years. Not all reviews will necessitate a change in the plan documents, but the above benchmarks will serve you in good stead should a revision be necessary.