It is frustrating as an estate planning attorney to receive a call from a client asking if I have the estate planning documents they signed. Because our society is so mobile, I do not retain original signed estate planning documents for my clients, but send them back to clients with instructions on how to keep them. But many times clients are so relieved that they have signed the documents, they totally ignore the instructions I send them with their original documents.
So what should you do? Some people provide the original documents to the person who will need them when they become incapacitated (in the case of a power of attorney or medical power of attorney and related documents) or die (in the case of a Will). But often people do not want to provide the original document to that person until they actually need to use it. What do you do in that case?
Instead of providing the original to the person(s) you appointed, you may elect to provide a copy of those documents along with a description of how the agent, in case of need, can obtain the original document. For example, if you kept the original documents in a file cabinet in your home, you might send your appointee a copy of the pertinent document along with a description something like the following: “If I ever become unable to handle my own affairs or am incapacitated, you can find the original of this document in a folder labeled “Estate Planning Documents.” That folder is located in the top drawer of a locked file drawer in my bedroom closet. The key to the file is located in the kitchen cabinet to the left of my stove. The key to my house may be obtained from my neighbor, Susan Jones, who lives at 1234 Mulberry Street in Plano. Her telephone number is 214-555-5555.” This method allows your appointee to easily locate your documents when the need arises, but withholds from them any temptation of using the documents before they are intended to be used.
Remember, if your agent or executor cannot locate the original document, the presumption in Texas is that the document has been revoked. And for Powers of Attorney or Medical Powers of Attorney, delay in locating those documents can cause major problems. Similarly, inability to locate your original Will may result in the bequests you made being unknown and not put into effect.