The Safekeeping Of Your Estate Planning Documents.

You have just executed (signed) your Will, and perhaps also a financial Power of Attorney and Health Care Directive. What now?

While many law firms will store original, signed documents on behalf of clients, many do not. (I do not.) You may be tasked with the custody and safe storage of your valuable estate planning instruments. Too many people stash their valuable documents in a shoe box or among a stack of papers on a desk, which is a very bad idea.

In the case of Wills, your personal representative will need to obtain the original, signed instrument to submit to the probate court after you die. Therefore, it is essential that your Will be kept in a safe, secure location, but one where the personal representative has access when needed. 

A home safe, secure file cabinet or fire-resistant lock box is a good location for a Will. This minimizes the chance that the Will is lost or destroyed by fire or flood, and it keeps it away from prying eyes. Another option is to store the Will in a safe deposit box at a bank. However, it is important that the personal representative has access to the box.

Perhaps the best and most secure option is to deposit the Will for safekeeping at your county probate court, usually for a small fee. That way, the Will is kept where it needs to be when the time comes.

It's a little different for a Power of Attorney and Health Care Directive. These are documents that are needed while you are alive but usually at a time when the you are incapacitated or otherwise unable to make decisions for yourself. The documents may be needed quickly when the time comes, and as such, they should be stored in a place where they can be immediately retrieved. The named fiduciaries should have knowledge of their location in advance and have access to them. For these instruments, a bank safe deposit box may not be an ideal location, as the institution may be closed when the documents are needed. A file cabinet or home safe is a good location. 

Most health care providers will scan and store a patient's Health Care Directive, so it is important to give copies to your doctor, clinic, local hospital, care facility, etc.

The Trifecta: Basic Will, Power Of Attorney, Health Care Directive.

You should have all three in your estate plan.

The Basic Will.

This powerful and important legal document is an instrument that can help ensure that your assets will pass to your loved ones, according to your wishes. A valid Will also allows you to choose your personal representative, a person who has a fiduciary responsibility to represent the best interests of your estate. Your personal representative is responsible for probating your Will--that is, to file an application or petition the probate court and admit your Will to the court. Your Will can also name guardians and conservators to care for the personal and financial needs of minors.

Dying without a valid Will (intestacy) can result in the probate court deciding where your assets go, which may not be what you wished for. In addition, the probate court gets to determine who will act as your personal representative, and will appoint any necessary guardians or conservators.

The Power of Attorney.

This instrument gives one or more persons the power to act on your behalf as your agent for property and financial matters--while you are still alive. When you grant power of attorney you are referred to as the principal. The agent is referred to as the attorney-in-fact. A Power of Attorney can be narrowly limited to a certain activity, such as dealing with real estate transactions, or it may be very broad in scope, giving the attorney-in-fact the power to manage many affairs for the principal. The Power of Attorney can be designed to give temporary or permanent authority to act on your behalf.

A Power of Attorney can be designed to be in effect only while the you are able to make decisions (non-durable), or it can remain in effect if/when you become incapacitated or incompetent (durable). You can revoke your Power of Attorney at any time and for any reason. However, you must give written notice to your attorney(s)-in-fact that their powers have been revoked.

The Health Care Directive.

Sometimes referred to as an "advance directive," a Health Care Directive is an important legal instrument that has two components: 1) it provides instructions concerning your health care in the event you are unable to make those decisions yourself, and 2) it names one or more persons to act as "fiduciaries" or agents to access your medical records and make health care decisions on your behalf--what is known as a Durable Power of Attorney for Health Care (DPAHC).

A Health Care Directive provides guidance to your physician, family and friends in the event you are unable to communicate due to physical or mental incapacity. A Health Care Directive sets forth your health care goals and concerns and helps to ensure that your wishes are adhered to, even if those wishes are contrary to the interests and beliefs of others. You can state what you want as well as what you don't want. You can also state limits of the powers you want to give to your agent.

Your Health Care Directive becomes effective when it meets certain legal requirements and your health care provider determines that you are no longer able to make health care decisions for yourself. Your health care provider generally will follow your Health Care Directive, or any instructions from your agent, as long as the health care follows reasonable medical practice. However, you or your agent cannot request treatment that will not help you or which the provider cannot provide.

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Contacting a qualified Minnesota attorney is the first step in building a comprehensive estate plan that meets your needs and provides for the future of your loved ones.