Estate Planning in the COVID-19 Era

May 14, 2020 - E. Sterling Moose Busbee
In uncertain times like these, COVID-19 reminds us to be prepared for the unexpected. Do you have an estate plan in place?

If so, now is the time to review those plans and make any necessary updates. If not, consider creating one. Although a Last Will and Testament, and possibly a Trust Agreement, is important upon your death, there are three documents equally important during your lifetime. A Healthcare Power of Attorney, Living Will and Durable Power of Attorney allow you to name an individual (Agent) or individuals to make decisions for you in the event you are unable to do so. 
Healthcare Power of Attorney- Authorizes your Agent to make medical decisions for you in the event you are unable to do so.

A Healthcare Power of Attorney also allows you to waive HIPAA requirements and therefore allows information about your health status to be disclosed to your Agent. This is important because it allows your Agent to make informed decisions regarding next steps for your health.

In the absence of this document, decisions related to your health will be made by your spouse if he/she is available, by your children if your spouse is not available, by your parents if your spouse and/or children are not available, or by your siblings, if none of the individuals listed before are available. Please note that if you desire to have healthcare decisions made by an individual other than the ones listed or in a different order than that statutorily prescribed, it is very important that you execute a Healthcare Power of Attorney. Additional considerations include the presence of a partner who is not legally your spouse who you desire to make healthcare decisions for you; geographic constraints for the individuals designated by statute; the sophistication of individuals named by statute; familial relationships, etc.
Living Will- Documents your medical wishes as it relates to CPR, artificial nutrition and hydration, organ donation, etc.

A Living Will is also referred to as an Advance Directive when it is in the same document as your Healthcare Power of Attorney. This document helps your Agent know your wishes for life-prolonging measures. It is important to communicate your desires in this document to help your Agent make the best decisions possible on your behalf, in the event it is needed.

A Living Will only applies if your condition is terminal or you are permanently unconscious.
Durable Power of Attorney- Grants your Agent access to your finances to pay bills, medical expenses, etc. in the event you are unable to do so. 

A Durable Power of Attorney (DPOA) can be drafted to provide a great deal of authority to your Agent or it can be narrowly drafted to limit the power of your Agent. Once signed, a DPOA is effective immediately. This means the individual or individuals named as your Agent immediately have access to your financial accounts. Therefore, you should carefully consider who you name as your Agent.

In the event you are physically or mentally unable to handle your affairs, your Agent steps-in to handle them. This power can include the ability to pay your bills, access any safe deposit boxes, access and manage your bank account, create trusts for your benefit, file taxes on your behalf, sell property, sign legal documents on your behalf, among many other powers.
We encourage you to use this time to review any existing estate planning documents to ensure they accurately reflect your desires or consider implementing an estate plan. We are happy to review any existing documents with you and discuss the next steps for amending or implementing an estate plan. Please let Sterling or your HSB attorney know if you have any questions or if we can be of assistance.
For additional resources on COVID-19, please access HSB’s resource page.