Many of the issues concerning estate planning, including the preparation of Last Wills, Living Wills, Health Care Proxies and Powers of Attorney involve the personal intentions of the creator of the document. For example, a Will should reflect the manner in which the testator desires or intends his assets to be disposed of at the time of death. Likewise, the identification of agents and the delineation of powers and directives in a Power of Attorney or Health Care Proxy is meant to show the principal’s desires concerning his property management and personal needs in certain situations that may occur.
However, the provisions in these documents, on their face, capture a person’s apparent intentions at the moment in time when the document is created. The enduring nature of the document, unless revoked or modified, effectuates such intentions years or perhaps decades after they were originally formed. An underlying question may be whether such recorded directives actually reflect what a person wants to happen at the time when the controlling document (i.e., a Will) becomes effective or put into use. If intentions have changed, the document is not a true representation of a person’s wishes.
A recent article written by Solangel Maldonado in Trusts and Estates dated April 27, 2020 entitled “End of Life Health Care Decision Making: Lessons for Wills, Trusts and Estates Law,” provides a review of an article written by Jane B. Baron that is to be published in 87 Tenn. L. Rev. entitled “Fixed Intentions: Wills, Living Wills, and End-of-Life Decision Making.” The essence of the above articles is a discussion of issues regarding whether a person’s intentions are, in reality, fluid and may change over time, thus, creating a possible need to seek alternative ways of discerning and giving effect to someone’s intentions at the time they are to be effectuated outside of a formal writing.