Coronavirus Estate Planning Amending Living Will Pandemic

The COVID-19 crisis has caused many people to recognize that life can change quickly, even for those who are young and healthy.

This realization has also raised some interesting challenges that may necessitate a review of your current estate planning documents or a creation of new documents to help protect your wishes. For example, does COVID-19 change how you feel about ventilators and/or life support? Would you be willing to authorize experimental treatment? With an ever-changing, novel virus, physicians and scientists are doing their best to prevent and treat this insidious disease, and new treatments may be available after you complete your estate planning. Would you want those treatments? Does your Agent know your wishes? These are all critical questions, and you should make sure that your documents are updated to reflect your current thinking, while also planning for the possibility of future treatments.

The physical and financial health challenges caused by COVID-19 have given us all time to rethink our goals, priorities, and expectations. As a result, estate planning has received a lot of attention and what may have been delayed is now a top priority for many people, including a renewed focus on the importance of having a Living Will.

How Does Coronavirus Affect My Living Will And Medical Powers Of Attorney?

Even the young and healthy can be infected with COVID-19 with many people dying or having to be put on a ventilator. This is why it’s very important to have a Living Will in your estate planning documents. A Living Will is a legal document that states your wishes regarding your healthcare while you are still alive, but unable to make decisions for yourself.

You may be asking yourself, when is my Living Will activated? A Living Will goes into effect if you become incapacitated. So, does needing a ventilator during COVID-19 treatment activate your Living Will? Yes, because when a person is put on a ventilator (a machine that blows air or extra oxygen into your lungs and airways) they are heavily sedated; they are not awake or able to make decisions for themselves. If you have to be put on a ventilator, you will not be able to make decisions for yourself; you will be considered incapacitated.

If you don’t have a Living Will or Medical Powers of Attorney in place, your family will be forced to make difficult decisions on your behalf while they are in an extremely emotional state of mind. Your family may need to make decisions about whether you should receive experimental treatments or if you should be taken off a ventilator or life support. By creating your Living Will and Medical Powers of Attorney now, you may save your family the burden of having to make these difficult decisions.

Which Healthcare Documents Do I Need?

If you were to become seriously ill, you would want documents in place that would clearly state who will be making your healthcare and financial decisions for you. Having certain healthcare directives in place will help protect your interests and healthcare wishes. The following are directives that you should speak with your attorney about including as a part of your estate plan:

1. Healthcare Power of Attorney– This document appoints individual(s) to make medical decisions on your behalf if you cannot make the decisions yourself. If you don’t have a Healthcare Power of Attorney in place, Arizona law will dictate who will make these decisions on your behalf. According to Arizona law, your surrogate medical decision makers are (in successive order): spouse, adult children by majority vote, parent, domestic partner, sibling, or close friend. In order for any of the above to act, however, it will require that they file a petition to be appointed as your guardian, a sometimes-costly legal process. In order to prevent any familial conflict and minimize legal fees, it’s best to designate a person that you trust, along with any alternative agents, to make medical treatment decisions on your behalf.
2. Mental Healthcare Power of Attorney– This document authorizes the designated Agent to consent to your in-patient mental health treatment in a hospital level setting. If you don’t have this document in place, and you need in-patient mental healthcare, it’s possible your family would need to go through a lengthy and costly mental health guardianship proceeding.
3. Living Will– This document provides your end-of-life medical treatment wishes that you would like to be honored by your physicians and medical decision makers. For example, your Living Will would list whether or not you would want certain medical treatments, such as being put on life support. A Living Will is important because it lets your family know your wishes so they can honor them. If you don’t have a Living Will, your family may argue about your medical treatment plans.
4. HIPPA Authorization Release– HIPAA laws prevent your medical providers from sharing any of your medical information with anyone (even a spouse) without your written consent. A HIPPA Authorization can allow all your medical providers to share your medical information with those that you have authorized. If you don’t have a HIPAA Authorization Release, your family may have difficulty managing your healthcare. It’s also important to note that if you require treatment at a hospital setting, you will need a HIPAA Authorization Release for that hospital. For example, a release to your primary care physician wouldn’t transfer to a hospital setting.
5. Durable Financial Power of Attorney– This document allows you to designate an Agent to access your assets and act on your behalf regarding financial decisions if you are incapacitated. You can choose to have this take effect immediately or only upon your later incapacity. Unlike medical decision making, there is no legal surrogate authorized to handle your financial matters if you become incapacitated. Your spouse does not automatically have the authority to manage your assets. Your spouse can access funds held in jointly titled accounts, but they wouldn’t be able to manage your retirement accounts or any interest you hold in real property. If you don’t have a Durable Financial Power of Attorney in place, your family would need to go through a court process called conservatorship in order to manage any accounts that are titled to you individually.

Although there are many how-to and do-it-yourself Living Will and medical directive forms on the internet, it’s best to seek professional guidance on these important documents. Internet forms often provide generic information on how to write a will or healthcare directive sample language. However, these internet sites may not know the specific laws and rules for your state of residence. If you find a sample Living Will that you believe would work for you, it’s a good idea to have it reviewed by a qualified attorney. An error in planning and drafting these documents can have a catastrophic effect, so it’s best to meet with an experienced estate planning lawyer who will be able to advise you on the best directives for your current situation. Your attorney will also be able to draft your legal documents to make sure they comply with all state and federal rules.

Are Your Documents TECH-Current?

With an utter proliferation of computers, tablets, phones and other technology in our everyday lives, it’s critical that your estate planning documents are also TECH-Current. What does that mean?

• It means adding language to your estate planning that expressly authorizes your designated Agent to give direction to your managing medical team by phone, email, Skype, FaceTime, Zoom, and/or any other form(s) of communication that you want included. This will require your attorney to draft documents giving your medical team permission to accept these forms of communication from your designated Agent.
• It also means that your documents should be readily available in an easily accessible electronic format, such as a PDF document. You will want to make sure that these documents are accessible to your Agent (and any alternative agents) through electronic methods, and that your Agent is able to access and operate the electronic methods that you’ve listed in your estate planning documents. For example, if your Grandmother is listed as your Agent and your Living Will/Medical Directives lists FaceTime as an acceptable method of communication, you will want to ensure that your Grandmother knows how to use FaceTime.

As much as I miss the old days of writing pen to paper, being TECH-Current does have numerous benefits, mainly that it makes communicating easier. This is especially important when there isn’t time to spare.

What Other Legal Documents Should I Consider Preparing In Light Of COVID-19?

Depending on your circumstances, you may wish to also add the following legal documents to your estate plan, including:

• Pet Care Agreement or Pet Trust– You can create this document to state who will take care of your pets if you are hospitalized for an extended period of time.
• Child Care Authorization– If you have minor children, this document will give another party legal permission to take care of them if you are incapacitated.
• Living Trust– A trust moves your assets from being owned by you to being owned by the trust. The benefit of a Living Trust is your assets will not have to go through probate if you pass away. This makes it easier for your loved ones to access their inheritance after your death.

Talk To An Estate Planning Attorney

The best time to prepare for an illness is when you feel well. Whether your estate requires simple or advanced planning, working with an experienced estate planning attorney will ultimately save you time, money, and a great deal of stress.

Contact Brown & Hobkirk, PLLC today to schedule your consultation. We will make sure to create an estate plan that is unique to your personal circumstances, family dynamics, objectives, and goals.

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