Estate Plan Changes to Consider Due to the Pandemic

You may need to reevaluate some elements of your estate plan in light of the coronavirus pandemic. There are unique aspects of this crisis that your current estate planning documents may not be suited to handle.

The language in some estate planning documents that is fine under normal conditions may cause additional problems for you and your loved ones if you fall ill during the pandemic. Look over the following documents to see if they may need updating in order to fulfill your wishes:

Durable Power of Attorney

A Power of Attorney (POA) allows you to appoint an agent to act in your place with regard to a wide range of matters (e.g., managing your mail, paying your bills, long-term care planning and more). It's a critical document that all adults need. A POA can be either current or springing. A current POA takes effect immediately, with the understanding that it will not be used until and unless you become incapacitated. A springing POA only takes effect when you become incapacitated. The problem is that springing powers of attorney create a hurdle for the agent to get over to use the document. When presented with a springing POA, a financial institution will require proof that the incapacity exists - in the form of a letter from a doctor or even two doctors quite frequently. In the current chaotic environment of the coronavirus pandemic, getting a letter or two from doctor(s) will be difficult, if not impossible . It's not easy during normal times either! Requiring your agent under a POA to seek out one or two doctors to get a certification of incapacity will only add to their tasks and delay their ability to act on your behalf when you need them to. Consider changing your POA so that it can take effect immediately if needed.

Advance Health Care Directive

The Advance Health Care Directive allows you to appoint someone to act as your health care agent for medical decisions. It will ensure that your medical treatment instructions are carried out when you are unable to make those decisions (e.g., if you are in a coma). Without this document in place, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so. Typically, your health care agent would confer with the doctors face to face. That will unlikely be impossible during the coronavirus pandemic because family members are often not allowed in the hospital. You need to make sure your Advance Health Care Directive contains a provision that expressly authorizes electronic communication with your health care agent.

The Advance Health Care Directive gives instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your wishes. This document states under what conditions life-sustaining treatment should be terminated. It often contains 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 still die). If your Advance Health Care Directive contains a blanket prohibition on intubation, you may want to rethink that.

If you have any questions about your documents, contact us.

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