Amending Your Will After You Become Incapacitated
For sound policy reasons, your Will cannot be changed by your conservator or attorney-in-fact after you become incapacitated. The downside of this rule is that it is not possible to make sensible adjustments to changed circumstances, such as changes in the tax laws.
Fortunately, a recent Tennessee law (TCA Section 35-15-602(e)) recognizes a method for you to authorize changes to the disposition of your estate after your become incapacitated. Two years ago, I prepared a revocable trust agreement and a general power of attorney for one of my clients that authorize a family friend to make changes with certain parameters.
Even though my client is now incapacitated, I am preparing an amendment to her revocable trust that will change a $1,000,000 bequest to her daughter to a $2,000,000 charitable lead trust. Estate tax savings from the charitable deduction accounts for the different amounts. For 20 years after my client dies, the charitable lead trust will make payments to charity that the daughter and her children would have otherwise made from their own assets.
The amendment power is a very powerful tool. This power needs to be drafted carefully and should be given to someone whom you really trust.