The Importance of Up-to-Date Estate Planning in the Age of COVID-19

The coronavirus pandemic (COVID-19) has been a disturbing reminder that life can suddenly change. How can you now take control of your affairs so that you and your loved ones are cared for in the unlikely event of illness or death? Begin by updating your estate planning documents so that they are aligned with your goals.

Essential Estate Planning Documents

Evaluate the following considerations in getting these pivotal estate planning documents in place:

• Financial Power of Attorney. This document gives a designated, trusted adult the legal authority to manage financial and property matters on your behalf while you are still living. If you are sick in quarantine or are incapacitated in the hospital, this document is particularly useful for an agent to pay your bills, write checks, and sign tax returns. Without this integral estate planning document, your family members will have to request the probate court to appoint a guardian or conservator to take over these duties. Note that the court process may be expensive and time-consuming, particularly during a pandemic.

• Health Care Power of Attorney. Similar to a financial power of attorney, a durable power of attorney for health care names someone, such as a spouse or trusted friend, who can legally act as an agent and make medical decisions for you in the event you become incompetent. College-age children, who are legally adults, should have their own set of health care proxy and financial power of attorney documents, so decisions could be made on their behalf if they are incapacitated. 

• Living Will. An advanced medical directive typically has two parts: the health care proxy and a living will. The living will specifies the type of treatment you would want if you became critically ill and further outlines your wishes in terms of end-of-life care. Without detailed instructions, your family members may have to decide whether you would want to be kept alive artificially, what level of pain you would be willing to live with, and how to let you die if you have no hope of recovery. Are experimental medical treatments, which may be used for COVID-19 survival, permitted under your health care documents? Think about revising your living will to explicitly allow experimental treatments if they are vital to survival.

• Health Insurance Portability and Accountability Act (HIPAA) Waiver.  You should have a standalone HIPAA waiver as a backup document. While an advanced health care directive will likely contain language that permits agents to access your medical records, it is not uncommon for medical facilities to refuse access to medical information without a standalone HIPAA waiver. Nominated agents and family members, with a HIPAA waiver in hand, will have access to your medical information, so they can speak freely with health care providers in the event of a medical emergency.
  
  If your health care agents made medical decisions before the COVID-19 pandemic, they would have been in the hospital talking to your care providers and signing documents. If COVID-19 protocols are in place and hospitals are overwhelmed, this will not be practical. Consider modifying your documents to expressly authorize electronic communications of decisions by agents via FaceTime, Zoom, or electronic signature.

• Last Will and Testament. This legal document enables you to appoint an executor to oversee the distributions of your assets and property at the time of your death. Without a will, there is no direction as to how these assets will pass upon your death. Consequently, distribution of your assets will be handled by the state, and the court will decide on the best person to fulfill the role of overseeing the administration of your estate.
  
  How do you establish a will when you are unable to meet in-person with an estate planning lawyer? Fortunately, many law firms offer video conferencing, allowing individuals, family members, and groups to conduct meetings from various locations to establish and execute a will as well as other legal documents. For straightforward estate planning circumstances and needs, you can find self-help resources on websites, such as FreeWill.com, that can help you put together a last will and testament. Several states also provide a statutory form.

• Digital Assets Inventory. Compose instructions for designated people to access your digital assets, such as your email, social media accounts, and physical devices, in your absence. Do not forget to list usernames, passwords, security question answers, and any other information needed to get into each digital asset. Be sure they store this inventory in a secure location, somewhere other than a desk drawer or e-mail account. Back up any digital assets in the cloud to a local computer or storage device on a frequent basis so that named family members and fiduciaries can readily access them.

Living Trust Considerations

If you have children who are not yet adults, there are additional issues to account for when assessing your estate plan. It is critical that you name a guardian for your minor children in your will or as a standalone document. As parents, you should think about your values and who would best care for your children while serving as guardian. 

Consider having an estate planning attorney create a revocable living trust if you have minor children, a blended family, own real estate, or have more than just the simplest of assets. Should the appointment of trustees for minor children be updated? To this end, a simple trust can be set up to keep assets in trust for the minors and stipulate how and when the children are to receive the assets. Further, you can ensure the assets are protected, both from creditors and in the event your children get divorced.

If you become incapacitated or unable to handle your matters, the living trust also affords you with privacy surrounding the details of your estate. It would avoid the need for probate, which is a public process. Nominated successor trustees would subsequently step in to manage your affairs without the involvement of the court, averting the extra hassles associated with probate. 

Signing and notarizing estate planning documents, such as wills and revocable living trusts, during the COVID-19 pandemic may be complicated when social distancing guidelines are in full force. Understand that state laws vary as far as the requirements for signatures of either witnesses or a notary public, or even both. Any witnesses to legal documents must still be disinterested individuals who will not benefit from the documents they are signing, and they must also actually witness you signing the documents in person.