If you have completed an estate plan, have you given much thought to how your intended beneficiaries will discover its location or contents? We are often asked about how much information should be shared with children or other beneficiaries. We generally can’t give anyone a stock answer to that question. Many clients like to bring one or more children to planning meetings, so the whole family is “in the loop” from day one. Others express a desire to spend all they worked so hard to accumulate, and only create a plan to provide for their potential failure to do so. These clients often consider what they have to be no one else’s business.
No matter where you fall on this issue, whether on one extreme or the other, or somewhere in the middle, your chosen agents at least need to know that you have a plan, and where to find it if the need should arise. For instance, a medical power of attorney, a HIPAA release or an advanced directive won’t do anyone any good if they aren’t located until after the death of the signor.
Many clients also choose to make this information available by advising agents and beneficiaries of the identity of the firm who assisted them with their estate planning. When the client has died and the family has produced a death certificate, disclosure by the firm is generally not a problem so long as the person requesting the information is the appointed executor or successor trustee.
However, there is always a bit of tension when an estate planning attorney is called and advised of the client’s diminished capacity, and a request for the planning documents is made to assist with arranging for the care of the client. On the one hand, these documents are generated to prepare for just such an occasion. On the other hand, the decision as to who gets to see them and when is ultimately the clients to make. This means that when a child or other agent makes a request for incapacity documents such as medical and financial powers of attorney, advance directives and HIPAA complaint medical authorizations, as well as declaration of guardians, the estate planning attorney is torn between being helpful to the family and protective to the rights of the clients.
As a result, and in order to balance these competing concerns, we have begun to include an authorization form that allows our clients to express what this type of information should be disclosed upon request and to whom. This allows our staff to know each client’s wishes about disclosure of their planning documents, and to conform our disclosures to those wishes.
If your current plan doesn’t address this concern, and you want to address it, you might consult with your estate planning attorney for guidance about how to address these concerns.
By Michael G. Carroll