You may need to reevaluate some elements of your estate plan in light of the coronavirus pandemic, especially if there is a spike of cases due to the holidays. There are unique aspects of this crisis that your current estate planning documents may not be suited to handle or verbiage that is missing from these crucial documents that would prevent your agent from acting in your best interest.
The language in some estate planning documents that is acceptable under normal conditions may cause additional problems for you and your loved ones if you fall ill during this pandemic. Look over the following documents to see if they may need updating in order to fulfill your wishes, or consider establishing these documents if you do not have them:
Directive to Physicians. A Directive to Physicians (commonly known as a Living Will) is a document that you can use to give instructions regarding treatment if you become terminally ill or are in an irreversible condition and are unable to communicate your instructions to the healthcare professionals that will oversee your care. This directive will include instructions to determine when life-sustaining treatment should be terminated. Many directive to physicians contain a prohibition on intubation, which can be used to prolong life, even in a vegetative state. However, in the case of Covid-19, intubation and placement on a ventilator can actually save a patient’s life (although many patients who are intubated have passed away). If your directive contains a blanket prohibition on intubation, feeding tubes, or even CPR, Your Legacy Legal Care can help you update your previously executed documents.
Statutory Durable Power of Attorney. A Statutory Durable Power of Attorney (POA) allows you to appoint someone (known as your agent) to act in your place with regard to matters that do not include medical decisions. A power of attorney can be made to be effective immediately, or upon your incapacity or disability. A Power of Attorney that is effective immediately takes effect as soon as you sign it, usually with the understanding that it will not be used until you become incapacitated. A power of attorney that is made effective upon your incapacity or disability only takes affect when you become incapacitated. A problem can occur for your appointed agent who is attempting to act as your agent with making it effective upon your incapacity. When presented with a power of attorney that is only effective upon incapacity, a financial institution will often require proof that the person is in fact incapacitated, often in the form of a letter from a doctor. In the current chaotic environment of the coronavirus pandemic, getting a letter from a doctor will be difficult, if not impossible. Requiring your agent under a power of attorney to seek out a doctor to get a certification of incapacity will only add to their tasks and delay their ability to act on your behalf. You may want to consider updating your statutory durable power of attorney to be effective immediately if you want your agent to be able to act on your behalf immediately.
Medical Power of Attorney. A medical power of attorney allows you to appoint someone else to act as your agent for medical decisions. It will ensure that your medical treatment instructions are carried out. Without a medical power of attorney, or medical agent to act on your behalf, your doctor may be required to provide you with medical treatment that you would have refused if you were able to voice your wishes yourself. Usually, the person who is appointed to act as your agent would confer with the doctors in person. That will likely be difficult during the coronavirus pandemic because loved ones are often not allowed in the hospital with sick patients or have strict visitation guidelines. You need to make sure your health care proxy contains a provision that expressly authorizes electronic communication with your agent in the event of your agent being unable to communicate with your doctor or healthcare provider in person.
Before revoking and/or updating your current estate planning documents, be sure to consult with your elder law attorney at Your Legacy Legal Care to ensure your powers of attorneys, healthcare directives, and your other estate planning documents express your wishes during this time. To schedule your strategy session, click here or call us at (281) 885-8826.
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