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. This language 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 to fulfill your wishes:
Advance Health Care Directive.
The Georgia Advance Directive for Health Care is a statutory document that contains health care proxy provisions and living will provisions. Depending on the state in which you live, these documents may have different names/titles.
Health Care Proxy
A health care proxy 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 health care proxy, your doctor may be required to provide you with medical treatment that you would have refused if you were able to do so. Usually, the person who is appointed to act as your agent would confer with the doctors in person. That will likely be impossible during the coronavirus pandemic because family members often are not allowed in the hospital with sick patients. You need to make sure your health care proxy contains a provision that expressly authorizes electronic communication with your agent.
Living Will
A living will is a document that you can use to give instructions regarding treatment if you become terminally ill or are in a persistent vegetative state and unable to communicate your instructions. In the Georgia Advance Health Care Directive, these provisions are contained in “Part Two: Treatment Preferences.” The living will states under what conditions life-sustaining treatment should be terminated. Many living wills 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 save a patient’s life (although many patients who are intubated still die). If your living will contains a blanket prohibition on intubation, you may want to rethink that.
Durable Power of Attorney
A power of attorney (POA) allows you to appoint an agent to act in your place regarding financial matters. A POA can be either current or springing. A current POA takes effect immediately, usually with the understanding that that the agent will not use it until and unless you become incapacitated. A “springing” POA only takes affect 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 power of attorney, a financial institution will require proof that the incapacity has occurred, 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. Consider changing the POA so that it can take effect immediately if needed.
Consult with your attorney to make sure these documents and your other estate planning documents express your wishes during this time. If you don’t have an attorney, Duckett Law LLC can help.
