Estate Planning During an Uncertain Time

The COVID-19 crisis has caused many of our Clients to raise questions pertaining to their own estate planning, particularly documents that family members may need in the event that a loved one becomes hospitalized. Given this unprecedented time, we encourage all of our clients to consider the following:

A. Are your estate planning documents that address legal and medical matters while you are still alive up to date, consistent with your wishes, and readily available or accessible?

Estate Planning Documents that are effective immediately that we strongly recommend for Clients:

  1. Durable Power of Attorney

A Durable Power of Attorney is a written document that appoints an “Agent” to manage your legal and financial affairs, and it gives the Agent legal authority over your assets and other legal rights.

The Durable Power of Attorney becomes effective immediately upon signing, and it continues to be valid and effective if you were to become incapacitated. You should only appoint somebody that you completely trust. A Durable Power of Attorney often helps to avoid guardianship proceedings if a person becomes incapacitated, however the power granted by the document would terminate upon death.

We recommend that Clients should review their Durable Power of Attorney to insure they are comfortable with the Agent(s) designated as well as the scope of the power given to said Agent(s). Your Agent should also be aware of the document and know where a copy is located.

  1. Designation of Healthcare Surrogate

Also known as a Healthcare Power of Attorney, a Designation of Healthcare Surrogate nominates an individual (or multiple individuals) to make medical decisions on your behalf. It specifies the types of treatments that the health care surrogate is allowed to consent to, and it names alternate health care surrogates if your first choice is unable or unwilling to serve as your surrogate.

A Designation of Healthcare Surrogate is effective immediately, however, when you are awake and have mental capacity, then you maintain complete control of all your own healthcare decisions.

We strongly recommend to all our Clients to execute this document and to discuss their respective medical wishes with their designated health care surrogates; and your health care surrogate should always have an easily accessible copy of this document.

  1. Living Will

A Living Will is a document that allows you to state your wishes for end-of-life medical care in case you become unable to communicate your decisions. It also provides a guide for the healthcare surrogate if he or she has doubt about your wishes.

  1. Authorization for Release of Protected Health Information

Often called a “HIPAA Release”, an Authorization for Release of Protected Health Information is a document that designates family members and/or other individuals who would be considered an “Authorized Person” under the applicable HIPAA laws to be able to access a person’s confidential and protected health information.

B. Are your estate planning documents that take effect upon your death current and consistent with your present wishes? Consider the following:

  1. Are the named personal representatives (in your will) and named trustees (in your trusts) suitable, able, and willing to carry out your wishes? What about the named successors for these posts?
  2. Do the provisions of your will or trust reflects your interests in a way that maintains the best interests of your beneficiaries?
  3. Have there been any major life changes in your family since you first created or last updated your estate planning documents? (e.g. births, deaths, marriages, changes in wealth, etc.)
  4. Are the beneficiary designations on your accounts that permit them up to date?
  5. Do you and your fiduciaries know where your original estate planning documents are located?

The importance of these questions cannot be understated.

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