Mary and her husband Joe have had a good life together after 47 years of marriage. Last week Mary had a stroke and can no longer communicate with anyone. But Joe knows what she wants to do. For the last six months they have been discussing changing her will. Unfortunately she can't now because she is incapacitated. Joe, of course can change his will but this may not help take care of Mary's wishes. Joe calls up the attorney who prepared their wills to ask what to do. The attorney said that there was nothing they could do because Mary couldn't communicate with anyone. However, while Joe was on the phone the attorney offered to go to the probate court to start a guardianship. "No thanks" said Joe (Joe has been reading up on estate planning and found out how truly awful and expensive a guardianship is). Joe and Mary have powers of attorney for each other but you can't use a power of attorney to sign someone else's will. So what can Joe do now?

You've probably heard that timing is everything but so is planning. Had Joe and Mary set up a living trust they could have included in their powers of attorney the power to amend their trust. This means that Joe, acting on behalf of Mary can change the trust to reflect Mary's wishes as if Mary had signed the amendment herself. Joe can't change Mary's will but this won't matter because the living trust is the master estate plan not the will (wills make your estate go through probate- who needs that?). So how important is the power to amend? Just ask Joe.