What happens if you DON’T die but your spouse does? What if you need someone to make medical decisions for you for a long time while you recover?
By now, you may be tired of all the COVID-19 updates, case counts, and conflicting predictions about school openings, restaurant dining, and working from home. What is clear, however, is that COVID-19 is here to stay for quite some time. We may well be dealing with this disease for the next 12 months.
There is ample evidence that patients suffering through the height of the viral infection suffer greatly. Also, it is clear that beyond the severe health impacts and potentially fatal impact of the disease on some patients, even those patients who recover face a long recovery period. Friends and family members of COVID-19 victims and survivors are often left wondering how to deal with insurers, probate processes, and mountains of paperwork while mourning their loved ones or helping them through recovery. (Link:
You may not be worried about your own health risks but what if your partner becomes ill? What if they need to be on a ventilator? What if the hospital won’t allow visitors? What if you become ill, are not hospitalized, but remain weak through a long recovery that takes weeks, even months? How will you and family function through these challenges? A comprehensive estate plan can help you and your family deal with all of these situations and more.
The most urgent documents that everyone should focus on at this time are a durable power of attorney, an advanced healthcare directive, and a HIPAA Waiver. These documents will provide your agents named in the documents the ability to manage your affairs if you were to become temporarily incapacitated or hospitalized without the ability to pay bills or communicate with medical staff.
For complete protection, every family should have the above documents in place for all adults (including children age 18 and over) as well as a living trust, an accompanying pour-over will, and a nomination of guardian if you have a minor child. The trust and pour-over will work in conjunction with your power of attorney, advanced healthcare directive and HIPAA waiver to make sure your family members and any other beneficiaries that rely on you for support are taken care of in case of a medical emergency.
Durable Power of Attorney
If you become ill or injured, someone else must step in to help you care for your finances. With a durable power of attorney, you name a trusted person to pay bills, make bank deposits, collect benefits, and handle other money matters on your behalf. Without this important document, your loved ones will have to go to court to get a conservatorship to manage your financial affairs.
The person you name to make decisions for you is called your agent. Any competent adult can serve as your agent. This should be someone you trust, who is honest, possesses common sense and is dependable. Choose someone who is relatively nearby to manage the practical aspects of helping you with your finances. You should also choose a back-up agent, in case your primary agent is unavailable or unable to help you.
Your power of attorney take effect as soon as you sign it. This is why the document is called a ‘durable power of attorney.’ If you don’t, it will automatically end if you become incapacitated, and the court will need to appoint a conservator in order for your friends or family to access and manage your finances.
A durable power of attorney automatically ends at your death. You can also revoke your power of attorney at any time that you are alive, as long as you are mentally competent. In rare situations your power of attorney can also end if the court invalidates the document or if no agent is available. To avoid the problem of lack of an available agent, designate at least one back-up agent.
Advanced Health Care Directive
Most of us don’t know when we may need emergency medical attention. A valid Advanced Health Care Directive (also called a “Living Will”) makes sure that your wishes for medical treatment are followed and relieves the burden on your loved ones from having to decipher what medical attention you would want in catastrophic situations.
This document is shared with your agent (the person who will be carrying out your wishes), your doctor, and the medical institution that may be treating you. By thinking and planning in advance, you can help to avoid conflict, regrets, and unnecessary medical expenses during a medical emergency. It’s a difficult subject to think about, but both you and your loved ones will be grateful that you did should the need ever arise.
Your Advanced Health Care Directive is a private document until it is needed. It is not a public document, unless you decide to share it. Should the need arise for your agent to make medical decisions on your behalf, this document will be shared with your medical team and medical institution. Ideally, you should only provide copies of this document to your chosen agents.
Nomination of Guardian
If your children are still minors, you should consider who would wish to serve as guardian in the case of your untimely death. Consider your values and who would best care for you child. Remember that no one will be able to raise your children the way you would. Don’t look for perfection, because you will never find it. Ultimately, guardianship is a process where the court decides which individual is best suited for the job of raising your children. Remember that the court will give significant consideration to your choice for guardian of your children. Keep in mind that if you share custody with a co-parent, you should be aware that the court will likely consider the other parent a very suitable choice for guardian of your children when you are gone (assuming no violence or criminal issues involving the co-parent).
While your Advanced Health Care Directive will likely contain language that allows your agents to access your medical records, it is not uncommon for medical facilities to refuse access to medical information without a stand-alone HIPAA Waiver. As a back-up document, make sure you have a stand-alone HIPAA Waiver to allow your nominated agents and family members to have access to your medical information so they can speak freely with your health care providers in case of a medical emergency or your incapacity.
It goes without saying that parents should plan for the transfer of their assets upon their death. A valid will directs the probate court to distribute your estate to whomever you designate in your will. (The probate court is still the entity responsible for overseeing the valuation of all assets, the resolution of debts, paying the probate lawyers and other court costs, and then distributing whatever is left to your heirs.) Without a valid will, your estate will be subject to intestate probate laws and your assets will go to your blood relatives. If your children are minors, their inheritance will be managed for them until they are adults, at which time they receive all the assets in a lump sum. If this isn’t an ideal situation for your family, consider creating a living trust.
In its most basic form, a revocable living trust is just a legal contract that you make with yourself to create an entity to hold your assets. A revocable living trust can be set up so you can change it any time in your life (that’s why they are called ‘revocable’) and can outlive you, manage your assets, and make sure that your family and friends get what you wanted them to have, when you wanted them to have it.
If you become incapacitated or are unable to manage your estate, your living trust avoids the need for a court appointed conservatorship. The successor trustee you’ve named in your trust will step in and manage your affairs without court involvement. Although there will be the need to perform a trust administration after your death, the assets in your living trust avoid the delay and cost associated with the probate process. Because a living trust avoids probate, it also provides privacy. Probate is a public process. Anyone can find out how much you had, to whom you left your assets, and other personal information about you.
This is an understandably confusing and anxious time for many people. But if you are concerned about estate planning during this time, you can take comfort in the fact that there are law firms and notaries who are working and are able to assist in getting these important documents in place. Many attorneys are equipped to meet your needs virtually. Don’t let estate planning slip through the cracks during these uncertain times. Now is the time to get these important legal documents in place.