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The Problem with Out of State Documents – Part 1

       I am often asked whether moving from one state to another requires someone to redo their legal documents. While I obviously don’t have knowledge of the laws in every state, my general answer is that I am not aware of any state that invalidates a will, power of attorney or health care directive prepared and executed in accordance with a second state.

       Still, I am not entirely comfortable with that answer. I always tell my clients who are moving out of state that they should at least consult with an attorney in their new state to review the documents I prepared to insure they comply with that state’s law. If the local attorney believes it is necessary, then I tell my clients they should execute new legal documents that are state specific. I recent situation with one of my clients reinforced this belief.

       My client had executed a North Carolina power of attorney while living there. It was a springing power of attorney which as I explained in my blog post of 12/18/17 I do not like because of the added hurdles we need to clear. Unfortunately, my client did not have the legal capacity to execute a new power of attorney in New Jersey.

       His wife needed to access his IRA to pay for his care and qualify for Medicaid benefits. We obtained a statement from his physician expressing the medical opinion that he lacked the capacity to make financial decisions, attempting to invoke the power of attorney. His wife presented the power of attorney and the doctor’s statement to the financial institution where the account was held. They still refused to honor the document and allow access to the account.

       Next week I’ll tell you the reasons why.