In my estate planning practice, my clients are often initially seeking my help in making sure their families are taken care of in the event of their death. Although that is a big part of what I do, I also help clients make plans for periods of time when they are incapacitated and unable to take care of themselves and their families, though they are still alive. Covid-19 has been a striking example of how this may come into play.
For example, consider what would happen if you were in the ICU for an extended period of time, reliant on artificial ventilation to breathe, while you battle and recover from a brutal bout of Covid-19. Who would be making medical decisions for you when you can’t make them yourself? Who has the authority to access your funds to pay your bills so that your family is financially taken care of while you recover? Consider further, given the contagious nature of coronavirus, what if you and your partner were hospitalized at the same time?
Having a Durable Financial Power of Attorney allows you to appoint someone to act on your behalf in a variety of ways. Your agent can handle your banking, your mail, your retirement accounts, your taxes, and take care of your pets, to name a few ways this document can work. Depending on your state’s laws, you may even be able to nominate someone to serve as short-term guardian to take care of your kids if there isn’t a parent who can.
You can decide who to name, nominate back up agents, and decide what powers to delegate and when those powers will be effective. And this can all be done privately without court involvement (which is the route you have to go if you don’t have a Power of Attorney, but need someone to have authority to act for you.)
And what about medical decision making? If you are hospitalized with Covid-19 and unable to make medical decisions for yourself, who will make those decisions for you and does that person know how to make decisions that fit you values and beliefs? If you haven’t appointed a health care agent for yourself in a legally effective way, state law will choose who that person is for you. Typically, that person is your spouse, if you have one, or your closest blood relation, be that a parent, sibling, or so on. If you don’t have a spouse, or your spouse isn’t available (because they are ill also), is your mom or brother the right person for you?
In a Health Care Power of Attorney (sometimes called an Advance Health-Care Directive), you choose your health care agent (and name back up agents) and provide direction on the kind of care you want under various circumstances. Here are two examples of direction you can provide. If you are pregnant, but due to accident or illness wind up in a persistent vegetative state and unlikely to regain a meaningful life, do you want life-sustaining treatment administered in order to save the baby? Do you want your health care agent to have the authority to direct your mental health care, including admitting you to the hospital, if you need help?
Given these uncertain times with still so much unknown about Covid-19, it is a good idea to make sure you have these tools in place so that there is a plan to take care of you and your family in the ways you want, when your family needs it most.
Working with an experienced lawyer ensures that these tools are properly drafted and executed and that you receive good counsel about how to make these documents work for you and your family. I worry that many people may complete online documents during this time and not understand what they have created or how to make it legally and practically effective.
A piece of paper alone won’t take care of you; a knowledgeable attorney will help you come up with a plan that works.
Read about your Last Will and Testament here.
Lauren B. Weliver is an attorney who helps take care of individuals and families through estate planning in the Portland, Maine area. You can learn more about her and her practice at her website, www.weliverlaw.com.