12.03.2021 Written by: Henningson & Snoxell, Ltd.
It’s that time of the year when Minnesotans head south for the winter to enjoy the warmer climate in states such as Florida, Arizona, and Texas. If you are one of these lucky people, while you may not be establishing residency in these states, it is still essential to have a proper estate plan in place if something happens while you are on your extended vacation.
If you have a Will, Trust, Power of Attorney, and/or Health Care Directive in place, reviewing those documents before heading south for the winter is a good idea to make sure your plans and wishes are current. If you do not have an estate plan, getting something set up, even if it’s just incapacity documents, is better than having nothing expressing your decisions.
It’s important to remember that even though you may be living in another state for months at a time, you would still be considered a Minnesota resident. Therefore, your estate plan documents should reflect Minnesota law. However, your estate plan should also consider assets and regulations in the state you are wintering in, as that state’s laws may dictate what would happen if you become incapacitated or deceased.
First step: Ensure Incapacity Documents
First, you should ensure that your incapacity documents are up to date. Incapacity documents include Health Care Directives and Powers of Attorney. It’s essential to have a Health Care Directive that is general in nature, meaning it’s not applicable in only one state or with a specific wellness provider. Often health care providers will equip patients with a Health Care Directive, and while that Health Care Directive is helpful, it may not be accepted by another provider. For example, if you are in Florida for the winter and become incapacitated, your primary provider’s Health Care Directive on file in Minnesota may not be recognized at the Florida hospital you are being helped at. A properly executed Health Care Directive should be applicable in states outside of Minnesota and with nearly any medical provider.
Power of Attorney is another vital document to have in place. Minnesota has a statutory power of attorney document that can be utilized anywhere in Minnesota (financial institutions, real estate transactions, etc.). However, if situations arise where the attorney-in-fact (your designated agent) attempts to deal with a financial institution, real estate company, or government agency in another state, in that situation, the Power of Attorney based in Minnesota may not be accepted since it is specific to Minnesota law.
Therefore, it’s also crucial to have a Common Law Power of Attorney that is more general in nature. For instance, if you own real estate or have bank accounts in another state, the Common Law Power of Attorney should be effective in recognizing your attorney-in-fact to handle any transactions in that state where you are temporarily living.
Next step: Ensure Will/Trust
Lastly, you should always have a Will and/or Trust in place regardless of where you are residing. These documents will ensure that your assets will be distributed per your desires upon death rather than be subject to that state’s laws. You also want to make sure and nominate a Personal Representative/Executor who would be in charge of administering your estate. Possessing a Trust could prevent the need for a conservatorship during your life and probate upon your passing.
Whether your assets would be subject to probate would depend on which state they were owned in and the value of those assets; a trust could prevent that regardless of the location and value.
So while it may not be exciting to review or create your estate plan before leaving for the warmer climate, it is crucial to have documents in place so your loved ones can handle any issues that may arise due to any unforeseen event. Therefore, I would encourage you to ensure that everything is in place by contacting an attorney before heading south this winter.
Final step: Talk to an Estate Planning Attorney
Be sure to discuss with your attorney your Incapacity Documents along with your Will and Trust. Without having a Health Care Directive and/or Power of Attorney in place, your family could be left with a lengthy and costly court proceeding to get your affairs in order. These documents allow YOU to decide who you want to handle your medical and financial decisions, not the court.
Adam Kaufman is an attorney at the firm of Henningson & Snoxell, Ltd. located in Maple Grove, Minnesota. Adam helps individuals and families of all sizes and asset levels, by advising them and preparing: Wills Trusts Health care directives; and Powers of attorney.