In most cases, for a healthy adult, an estate planning change can always be made. The main issue where you cannot change your estate plans is related to your mental capacity and the language of the documents you’ve previously created. If you create something that’s irrevocable and does not give you the ability to exercise a power of appointment, then your ability to change that document can be very limited. Also, under the law, if you do not understand the nature of what you’re signing, then you are unable to change your documents. This can be subject to court disputes.
Can Someone Change Their Children As Power Of Attorney?
The legal document in which you name your children will determine the difficulty of changing it if you change your mind. If you create a will and you’ve named your personal representative as your son, then your son and you have a falling out and you want to change it to your daughter, it could be as simple as a 20-minute visit to your attorney’s office. However, if you have your son named as your power of attorney or designation of healthcare surrogate, you will have a higher degree of difficulty because your son already has control of the document and maybe taking action using that durable power of attorney or healthcare surrogate. At that time, you need to give your son notice that you have changed and revoked his power of attorney, and he is prohibited from using it. You should also notify all your financial institutions of the revocation, so they do not continue to permit him to utilize the durable power of attorney (or healthcare surrogate in the case of medical providers) on your behalf.
If you created a trust where you were not serving as trustee but you have named your child as trustee, if the document allows, you may be able to remove your child as trustee without cause. If the document does not require you to have a reason to remove your child as trustee, then you would notify your son of the change and appoint a new person to serve as your trustee. The change will trigger a right to an accounting (unless you waive it) of all the transactions that your son has taken as trustee of your trust.
Is There Anything That Cannot Be Changed From A Previous Estate Plan?
Things that you cannot change depend on the previous estate plan. In most cases, wills, durable powers of attorney, designations of healthcare surrogate, living wills, and HIPAA authorizations can be changed relatively painlessly. The main documents that you may have difficulty in changing are certain types of irrevocable trusts. Some irrevocable trusts can be set up for estate tax avoidance purposes and are completely locked up and unchangeable after you sign, no matter what. Other irrevocable trusts could be considered partially irrevocable trusts, where you can change some things but not others. Under Florida law, you are able to name different components of a trust document as being irrevocable at the point of setting up that trust agreement.
In most cases, you can completely change your previous estate plan. It all depends on the wording of the estate planning documents. If you are looking to change any of your estate planning documents, if the change appears to be drastic, and you are in a period of advanced age, the change may become more difficult because it may be challenged. This will be heightened if you have diminished capacity or there are others highly influencing you to make the change.
What Are Important Retirement Components To Address In An Estate Planning Document?
The most important components to address when planning for retirement in estate planning is the titling of your documents and accounts, and the naming of the people who would act on your behalf in certain circumstances. The titling of the accounts is very important because the way that your accounts are held, whether by yourself, with a joint owner, with a beneficiary, held in a revocable trust, or held in an irrevocable trust, must be consistent with your final wishes upon your death, especially regarding who can control those assets if you become incapacitated.
For more information on Making Changes To An Estate Plan, an initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (904) 398-6100 today.
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Author Bio
Kellen Bryant, Esq.
Founder
Florida Bar Board Certified Elder Law Attorney, Kellen Bryant focuses his law practice on advising and helping caregivers with a particular focus on asset protection and preservation from long-term care costs, creditors, and predators. Kellen Bryant is AV Preeminent® Rated, meaning his attorney peers rated him at the highest level of professional excellence. Kellen Bryant was nominated and selected as a Super Lawyer, Rising Star: 2022.
