How Long Do Your Estate Planning Documents Last?

When thinking about estate planning, the first document that tends to come to mind is a Last Will and Testament (“Will”).

However, there are other estate planning documents that are essential to any good estate plan. These include: Advance Directives, (such as a Health Care Surrogate Designation), Revocable Living Trusts (“Trust”), and Durable Powers of Attorney.

What are Advance Directives and Health Care Surrogate Designations?

An “advance directive” refers to written legal document in which a person (the “principal”) expresses their wishes regarding end-of-life medical decisions or medical treatments/interventions that they do or do not want in the event they become incapacitated.

The advance directive can also be an oral statement, it must be properly executed and witnessed regardless of whether it is an oral or written directive. The decisions made through an advance directive can included organ donations or whether or not they would want certain medical procedures performed that could prolong their life (for example, feeding tubes).

Another way to plan for incapacity is by designating a Health Care Surrogate. A Health Care Surrogate is a competent adult appointed as one's agent to make all health care decisions for the principal during their incapacity—whether physical or mental.

A Health Care Surrogate makes only those medical decisions that they believe the maker would have made for themselves. An example of this is if the Health Care Surrogate is informed and believes that the maker would not want feeding tubes to prolong their life, then the Surrogate would refuse that type of medical intervention.

What is a Durable Power of Attorney?

A Power of Attorney (“POA”) is a legal document that gives someone authority to act on another’s behalf. Basically, the POA grants an agent of the principal (or maker) the right to act on the principal’s behalf.

What the agent is allowed to do, and for how long, depends on the specific language of the POA. A general or limited POA will automatically terminate if the maker becomes incapacitated.

A Durable Power of Attorney, conversely, does not terminate upon the incapacity of the maker. It includes language that specifically allows the power of attorney to continue even if the principal becomes physically or mentally incapacitated.

Do These Estate Planning Documents Ever Expire?

Now we bring up the question: Do these types of estate planning documents ever expire?

The short answer is, “no.”

However, please keep in mind:

The more complete answer is that even though a Durable Power of Attorney or Health Care proxies will not expire, it is nevertheless the best practice to update your old documents.

This is because sometimes, third parties are hesitant to accept Health Care proxies and Durable Powers of Attorney that are very old, for fear that they might have been revoked or that they no longer express the person’s wishes.

If you have very old documents and a third-party refuses to accept them, your designated agent may find themselves in a courtroom battle trying to legally enforce your documents—which is certainly not what anyone wants to do.

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