By Rory S. Morse, Esq.
You’ve had a great, productive meeting with your attorney. After careful consideration and sound counsel, you’ve crafted an estate plan. You return to your attorney’s office and get everything signed and executed according to Minnesota law; congratulations! You can put your mind at ease, your estate plan is complete!
But now what? Do you keep the only copy? Should you share your documents with friends or family members who will have important roles or who will be receiving assets in your plan?
There is no easy answer; the primary thing to remember is that your estate plan is private, it is your business, and no one needs to know your plan except you. That said, many estate planning documents work best in the light of day. Communication may be the best approach to making sure your estate plan goes through without a hitch.
First, consider who you appointed in the various roles of your plan. Your personal representative (“executor”), your trustee, your health care agent, and your attorney-in-fact (your “power of attorney”) may or may not be the same person. If you plan to share these documents, sharing them with the people who will be doing the actual work is probably the safest path.
Only share your documents with people you trust. We assume you trust the people named in your documents, but it should still be a conscious decision to share your legal documents. If you do give copies to others, make sure you retain all the original documents. Only share photocopies (or electronic copies). You should maintain control over the originals at all times to ensure no one damages, modifies, or loses them.
Your health care directive is the document that allows someone to make health care decisions for you if you are unable to do so. This is generally a “safe” document . . . no one can act on your behalf as long as you have the capacity to decide things for yourself. Even in this situation, a health care directive generally contains a waiver of privacy under HIPAA. The people named in your directive may be able to access your private health care information, unless your document is drafted in such a way as to prevent this from happening (the professional drafted copy you do with an attorney is likely drafted correctly).
Similarly, your will and/or trust documents may contain personal information, but if you are comfortable sharing these things with your personal representative or successor trustee, you can certainly do so. Again, make sure you maintain the originals and only share copies.
Your most “dangerous” document is your power of attorney because it is designed specially to be used during your life. A “springing” power of attorney is used only when you are incapacitated, but most power of attorney documents are effective immediately. This is great in most cases, and can actually make life a lot easier for married couples who may need to occasionally sign papers on each other’s behalf. But for the untrustworthy, these forms can truly be a license to commit fraud.
Appointing the most trustworthy people in your life should be your top priority when deciding who has responsibilities in your plan. Make sure you speak with your attorney and carefully consider your options to avoid problems down the road.