The COVID-19 virus has upended people’s lives in so many ways. Simple tasks, like going to the grocery store, have become a logistical nightmare. Elders are being isolated at home or in assisted living facilities. People cannot accompany their loved ones – even spouses or children – into hospital rooms. And, as the number of infected grows exponentially by the day, some hospitals are considering universal Do Not Resuscitate orders.
It is impossible to fully prepare for events like these. However, there are protections that we should all have in place to minimize the damaging impact a virus like this could have on our lives. Of course, no one wants to think about the possibility of becoming seriously ill or incapacitated, but if your health took a sudden turn for the worse, would you be prepared?
Ask Yourself the Following Questions:
Have you reviewed or updated your estate planning documents in the last 4 years? If not, they may be out of date. During these unprecedented times, it is of utmost importance to ensure that all of your estate planning documents accurately reflect your current wishes and life situation. These documents include: Wills, Trusts, Power of Attorney, beneficiary designations, medical directives, and medical releases.
Who would be legally privy to your, a parent’s, or an adult child’s medical condition if they become sick or hospitalized? Who would be legally responsible for making medical decisions on your/their behalf should you/they become incapacitated? What type of life-saving measures would you/they want (or not want) exercised during an emergency?
Because of privacy laws like the Health Insurance Portability and Accountability Act (HIPAA), your right to get an update on the medical condition of a parent or even a child over the age of 18 years old is limited without the proper authorizations in place. HIPAA authorizations will permit your doctors to discuss your medical situation with others (parents, siblings, and/or close friends). That’s just for an update! The stress of medical emergencies are compounded when medical, financial, or parental decisions have to be made on someone’s behalf. That’s where additional advanced planning becomes critical.
Durable Power of Attorney
The legal document known as a power of attorney allows you to assign an individual of your choosing to act on your behalf. The trusted individual you name as power of attorney will have the ability to pay your bills, manage your investments, and make other decisions should you be unable to do so. General powers of attorney are nondurable, meaning that they cease should you become incapacitated. A durable power of attorney stays effective in the event you become incapacitated and become unable to tend to matters on your own. Without a valid Durable Power of Attorney, if you become incapacitated, your loved ones may not have the authority to handle your affairs; they may need to go to court.
Designation of Healthcare Surrogate
A healthcare surrogate – or healthcare agent – is an individual that you name to receive durable Power of Attorney for your healthcare. This designation gives the individual the ability to make medical decisions on your behalf if you should become incapacitated or unable to make medical decisions for yourself. Your healthcare surrogate will be given complete authority to make your medical decisions in that circumstance, but they will not have the ability to override any healthcare instructions that you have set forth in a Living Will.
A Living Will is a legally binding document that enables you to set forth your wishes regarding medical and end-of-life treatment decisions in the event of an emergency or incapacitation. You may specify the type of healthcare you want to receive as well as those treatments you do not wish to receive. By including a Living Will in your estate plan, your family members and medical professionals will receive clear instructions regarding your healthcare and medical treatment. When preparing a living will, it is best to be as detailed as possible in your instructions.
It is essential for families with children to clearly define who should care for your children should you and the other parent become unable to do so. A court will typically honor the wishes of the parent to determine who will become their legal guardian(s) for both the long and short term. That said, if these decisions are not formally put into writing (again, with the assistance of an experienced estate planner), you have left it up to a judge to make decisions for you, sometimes after a messy and costly court fight.
The Bottom Line
Without the appropriate estate planning documents, the state will decide who is going to make decisions for you. Moreover, the process of appointing someone to make decisions for you is burdensome and costly and can take weeks, if not months, to enact. To avoid these undesirable results, our team will work with you during these difficult times to ensure that you have the right documents in place.