Several years ago, James Brill wrote an excellent article for the Texas Bar Journal entitled, “Discouraging Disengagement.” It was billed as a helpful way to remind clients to maintain their estate plans. While we strive to build estate plans to last, various changes in the circumstances of clients’ lives means that amending the plans over the course of time will be necessary.
The first three reminders, all starting with the letter “D,” are death, disability and decline. You can’t change your plan after you die, but the death of a beneficiary, executor, trustee, guardian or agent under a power of attorney could greatly impact your plan. The longer you wait to address this loss, the more threatening it becomes to your plan.
Disability requires similar considerations to those presented by death. It may be that the disability of a loved one or trusted friend is even more devastating to your plan. If your sole beneficiary dies, your plan should provide for a secondary distribution. If your primary beneficiary becomes disabled, your plan may not work as intended. Often you name the primary beneficiary as your independent executor or as some other position of responsibility that they cannot fulfill because of their disability. You could also unintentionally disqualify them from other sources of assistance by leaving them some or all of your assets.
Decline in ourselves and in those we love and trust is so difficult. Objectivity as to our mental health is tough to come by, and most of us lack the training to measure cognitive decline in those we love. A regular visit to your family doctor and being honest with them about your concerns is important. Every few years you should have a checkup with your estate planning lawyer and try to avoid the dangers of disengagement.
