COVID-19 ESTATE PLANNING MODIFICATIONS TO CONSIDER IN CORE DOCUMENTS

30 May COVID-19 ESTATE PLANNING MODIFICATIONS TO CONSIDER IN CORE DOCUMENTS

The coronavirus pandemic has not only resulted in the stark realization of our mortality resulting in a surge in the preparation of wills and trusts, but it has also caused the necessity for review or consider changes to the most basic estate planning documents including medical powers of attorney, directives to physicians (living wills), and financial powers of attorney as set forth below:

1. Medical Powers of Attorney. A medical power of attorney is a document whereby you chose your pecking order of persons to serve as your agent to make medical decisions if you cannot make those decisions for yourself (instead of leaving it up to your doctor). Every time you go to the hospital, the hospital is required to ask you if you have a medical power of attorney and a living will. Without these documents, the doctor may make treatment decisions that you might not have decided to do. Normally those treatment options are discussed at the hospital. However, due to COVID-19, agents are often not allowed in a hospital. Furthermore, due to privacy laws (HIPAA), doctors, their offices and pharmacies may be banned from communicating with the agent. A medical power of attorney is supposed to be effective only when you are incapable of making your healthcare decisions. A HIPAA release can be effective any time (even after death) allowing the personal representative to communicate with your healthcare professionals. As a result of COVID-19, your medical power of attorney should not only allow electronic communications with your agent, but it is also recommended your medical power of attorney have specific language regarding HIPAA and the appointment of your personal representatives in such document as a result of the privacy laws. It is further recommended a separate “universal” HIPAA (not just a HIPAA every time you go to the doctor’s office or hospital) be signed since medical powers of attorney terminate on death unlike a HIPAA authorization form. Also, since your agent may not be allowed in the hospital, the agent’s phone number and email address should be included
2. Directive to Physicians (Living Will). A directive to physicians is a document which advises your doctor whether you wish to live or die if your condition is terminal or if you were in a persistent vegetative state if you are unable to advise of your desires. Often there are specific directions as to what you want withheld (CPR, food and water, etc.). It is not unusual for directives to prohibit intubation since most don’t want to be intubated if they are in a persistent vegetative state. However, intubation and placement on a ventilator can actually save your life in the case of COVID-19. As a result, you may want to consider a revision to your directive.
3. Financial Powers of Attorney. A financial power of attorney is a document whereby you appoint an agent to handle your financial affairs. The document usually gives you the choice to permit your agent to act for you immediately or spring upon your disability.Many often assume that it is best for your agent to only have authority when you lose mental capacity. The problem with that is if your agent needs to take care of your financial affairs, the agent will need a letter from your doctor as to your mental incapacity. During the pandemic, this may be extremely difficult to get – which may cause a financial hardship for you if action was needed without delay. Therefore, if you trust your agent, then authority should be given immediately at the signing of the document. Of course, if you didn’t trust your agent, then they shouldn’t have been chosen to act as your agent.

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