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Basic Estate Planning in a COVID-19 Environment

| July 17, 2020
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We generally recommend clients review their estate documents every few years to ensure their documents distribute assets according to their wishes and that financial and healthcare agents are still able and willing to serve. However, given the health crisis we are currently in, we think it’s a priority for everyone to review their documents now.

First and foremost, you should review your key documents for the flexibility to carry out your wishes in the event of a COVID-19 related illness.

Power of Attorney – a Durable Financial Power of Attorney identifies an agent to act on your behalf to manage your financial affairs.

If your financial power of attorney is “springing”, meaning it doesn’t come into effect until you are incapacitated, you may want to draft a new power of attorney that allows the agent to act immediately to manage your financial affairs.

It might also be wise to draft language authorizing your agent to act remotely via Skype, FaceTime, Zoom or other electronic communications and even offer a hold harmless agreement to encourage your financial institutions to accept remote instruction from your agent.[1]

Living Will/DNR – a Living Will/DNR outlines what treatment you want or do not want for your end of life care if you cannot communicate your wishes.

One of the items these documents often address is intubation. If your document prohibits intubation under any circumstances, you’ll want to draft a new one which outlines intubation may be required to survive infectious diseases that attack the airways and create difficulty breathing.

In addition, given there is no proven, widely accepted treatment for COVID-19, it’s important to ensure your documents do not reject experimental treatments. Remdesivir, the antiviral that has had some success in shortening the recovery from COVID-19, has been cleared for emergency use by the FDA, but was considered experimental earlier this year.[2]

Healthcare Power of Attorney & HIPAA Release – a Healthcare Power of Attorney identifies an agent to make medical decisions on your behalf when you are unable to make decisions yourself. A HIPAA release identifies an agent to whom medical information and records (which are protected by law) may be released.

In a normal health environment, your designated agent would likely be at the place you are receiving care to make important medical decisions. However, today anyone who isn’t a patient is not allowed to enter a hospital. As a result, you should consider updating your Healthcare Power of Attorney and HIPAA release to expressly state that you authorize your healthcare agent to communicate decisions and receive important medical information remotely via electronic channels.

Wills and Revocable Living Trusts – Wills and Revocable Living Trusts outline the ultimate distribution of your personal assets. While these are important to keep up to date, they are not as critical for your healthcare while you’re living as the documents noted above. You should still confirm your personal representative and trustees are able and willing to assist you.

Once your documents are updated, the next step is to ensure that your documents are available to your named agents and fiduciaries. Paper copies are great but having a copy available on the cloud is an even better idea.

I recently took my wife to the ER (don’t worry she is okay), and I wasn’t allowed to enter the hospital with her due to the hospital’s policy to mitigate COVID-19 risk. When I got home, the first thing I did was upload my wife’s Advance Directive (containing her Healthcare Power of Attorney, Living Will and HIPAA release) to the cloud so she could provide copies to the hospital. I wish I had done it before we left the house, or thought to print a paper copy, but I didn’t.

Lastly, if you have children who are no longer minors and don’t have estate planning documents in place, you should urge them to visit an attorney to draft:

  • A Healthcare Power of Attorney, to allow you or another identified person to make medical decisions on their behalf,
  • A HIPAA release, so you or another identified person can access their medical records,
  • A Living Will, to outline their wishes for intubation and end of life care, and
  • A Durable Financial Power of Attorney, to identify you or someone else to manage their financial affairs in the event of illness or injury

We’re in a world where constant vigilance is required to reduce our exposure to COVID-19, but we should also be preparing what we need to have in place in the event we do contract the virus. Updating key estate planning documents should be an integral part of your risk reduction plan.

[1]https://ils-webinar-materials.s3.amazonaws.com/2020-04-28+Core+Documents/Core-Document-Planning-during-COVID-Apr-28-2020-FINAL-3-slides-per-page.pdf

[2]https://www.nytimes.com/2020/05/23/health/coronavirus-remdesivir.html

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