Why You Need an Advance Directive Right Now

The number of Americans who have died in the last few months because of COVID-19 is staggering, reports Inside Indiana Business in an article that advises readers to “Get Your Advance Directives in Place Now.” Just talking with family members about your wishes is not enough. You’ll need to put the proper legal documents and why you need an Advance Directive or Health Care Proxy right now. It’s not that hard, and it is necessary.

Only one in three Americans has completed any kind of advance directive. Many younger adults don’t feel the need to complete these documents but there have been many examples that prove this is the wrong approach. Both Terri Schiavo and Karen Ann Quinlan were only in their twenties when they were not able to make their wishes known. Family members fought in and out of court for years.

The clinical realities of COVID-19 make it hard for healthcare workers to determine their patient’s wishes. Visitors are not permitted, and staff members are overwhelmed with patients. COVID-19 respiratory symptoms come on rapidly in many cases, making it impossible to convey end-of-life wishes.

Advance directives/Health Care Proxies are the written instructions regarding health care decisions, if you are not able to communicate your wishes. They must be in compliance with your state’s laws. The most common types of advance care directives are the durable power of attorney for health care and the living will.

A Health Care Proxy names a person who is usually a spouse or family member to be a health care agent. You may also name alternative agents. This person will be able to make decisions about your health care on your behalf, so be sure they know what your wishes are.

A living will is the document that states your wishes about the type of care you do or don’t want to receive. Living wills typically concern treatments like CPR (cardiopulmonary resuscitation), breathing machines (ventilators), dialysis, feeding tubes and certain treatments, like the use of an IV (intravenous, meaning medicine delivered directly into the bloodstream).

Studies show that people who have properly executed advance directives are more likely to get care that reflects their stated preferences.

Traditional documents will cover most health situations. However, the specific symptoms of COVID-19 may require you to reconsider opinions on certain treatments. Many COVID-19 patients need ventilators to breathe and do subsequently recover. If in the past you wanted to refuse being put on a ventilator, this may cause you to reconsider.

Almost all states require notarization and/or witnesses for advance directives and other estate planning documents to be valid. Many states, including Indiana and New York, now allow for remote notarization.

Talk with your estate planning attorney about putting all of your estate planning documents in order.

Reference: Inside Indiana Business (June 8, 2020) “Get Your Advance Directives in Place Now”

 

Why You Need an Estate Plan, Especially Now

Estate planning is an all-encompassing term that refers to the entire process of gathering and organizing assets and making preparations for when you die, including caring for minor children and heirs. It also includes putting protections into place if you should become incapacitated, says an article that covers estate planning basics from c|net titled “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents.” Your estate plan involves writing a will, power of attorney and funeral arrangements and especially now,  why you need an estate plan.

Here are some of the key steps:

Distributing assets. Your estate includes more than just real estate. It includes everything you own, including your car, jewelry, sentimental belongings and intangible assets, like investments and insurance. If you own a business, that is also part of your estate.

Preparing for family life without you. An estate plan sets out how you want to care for loved ones. A will is used to name a guardian for minor children, and to name someone to be in charge of their finances. One person can have both roles, but it is generally advised to name one person for each role. If you fail to name a guardian, the court will select one for your children.

Assign the tasks of handling the estate or your health, if you are incapacitated. An estate plan includes a Health Care Proxy or medical power of attorney and a financial power of attorney, so decisions can be made on your behalf, if you are incapacitated. You’ll also name an executor. This is the person who will be in charge of following the directions you leave in your will and distributing assets. Depending on your estate, the person may also be in charge of selling your home, negotiating with creditors, or managing the sale of your business. It’s a big assignment and requires someone who is organized and trustworthy.

Work with an experienced estate planning attorney. An estate planning lawyer will save you a lot of time, energy and effort in creating an estate plan. The attorney will also be able to help you manage estate, inheritance and gift taxes to minimize the impact of federal and state laws on your beneficiaries.

Document everything properly. Just stating your wishes won’t solve anything. You need an estate plan with all of the right documents prepared in accordance with the laws of your state. An invalid will could create just as many problems as no will at all. You’ll need a last will and testament to appoint an executor, outline how you want assets to be distributed and see your will through the probate process.

If you want to avoid probate court, you may want your estate plan to include a trust. A “funded” revocable trust can be adjusted while you are living. When you die, the trust is managed by trustees of your trust.

A living will details your healthcare preferences, in case you are not able to communicate or make decisions on your own. If you require life support, or life saving measures, the living will specifically outlines what you want to have done—or not done—rather than having children or relatives guess at your wishes.

Having an estate plan is not a set-it-and-forget-it plan. As you proceed through life, getting married, having children, divorcing, buying property, etc., the estate planning documents need to be revised, so they continue to reflect your wishes. Whenever there are big changes to the law, you may also need to revise the will, so you don’t miss out on any planning opportunities. Contact an experienced estate planning attorney if you need to get your affairs in order.

Reference: c|net (June 8, 2020) “Estate planning 101: Your guide to wills, trusts and all your end-of-life documents”

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Should I Have an Advance Directive in the Pandemic?

Advance directive is a term that includes living wills and health care proxies or powers of attorney. These are legal documents we all should have. A living will allows you to tell your family and doctors the types of medical care you want at the end of your life. Health care proxies let you name someone to make medical decisions for you, if you can’t verbally communicate.

WTOP’s recent article entitled “Advance medical directives vital during COVID-19 pandemic” says that you need both because not all medical situations will trigger a living will. In fact, a living will is only really applicable, if you have an end stage process, a persistent vegetative state, or a terminal illness. People often run into a situation where they have a health event, but it’s not something that’s going to end in their death. An estate planning attorney can draw up advance directives, when they’re creating your estate plan.

When selecting the individual to grant the power to make decisions for you, consider who would be most capable of advocating for what you want, rather than what they, other family members or a medical provider might want. You should also name a backup in the event your first choice can’t serve and make sure these advocates understand your wishes. Give copies of the documents to them and go through what you want.

Your estate planning attorney will follow your state’s rules about how to make these documents valid, such as having witnesses sign or getting the paperwork notarized.  Next, keep the originals in a safe place at home, along with your will and tell your family where to locate them. Your physician and estate planning attorney should also have copies. Tell your doctor to add the forms in your electronic health record. That way, other medical providers can access it in an emergency. You should also carry a card in your wallet that has your health care agent’s name and contact information, as well as where you keep the originals and copies.

If your choices could cause stress for your family, consider including a note explaining your thinking. Even if they disagree with your decisions, it is more comforting to hear it directly from you, rather than the person you named to act on your behalf.

Reference: WTOP (June 1, 2020) “Advance medical directives vital during COVID-19 pandemic”

 

What Is a Power of Attorney?

A power of attorney is a legal document that permits an agent or attorney-in-fact to make financial and legal decisions on your behalf, if you are unable to do so.

WTOP’s recent article “How to Set Up a Power of Attorney” says that the rules for designating power of attorney vary from state to state. Because of this, you should speak to an experienced estate planning attorney about your state’s laws.

Power of attorney is revocable. Therefore, if you’re mentally competent and believe you can no longer count on the person you designated as your agent, you can update your documents and select another person.

The individual you choose as your attorney-in-fact will depend to a large extent on the type of power you’re granting — whether it’s general or limited — and your relationship. For general power of attorney, people often go with their spouses or sometimes their children. However, you can choose anyone, as long as it’s someone you trust.

In many cases, designating general power of attorney is a component of a larger estate plan, so when you talk to your estate planning lawyer about your estate plan, you can add this to the conversation.

You may want to have your attorney draft a limited or special power of attorney. This lets your agent complete restricted transactions, like selling a piece of property. It’s limited in scope. In contrast, a general power of attorney lets your agent do about anything you could do. A general power of attorney is usually part of an estate plan, in the event you’re unable to handle your own financial matters as you age or become incapacitated.

A springing power of attorney goes into effect in a predetermined situation, and it will specify the circumstances under which the power takes effect. An immediately effective or non-springing power of attorney is in place once the paperwork is signed.

Powers of attorney typically end when the principal is unable to make decisions on his or her own. However, for some, becoming incapacitated is just the type of circumstances when they want someone they trust to have power of attorney.

A durable power of attorney continues after the individual is incapacitated. Therefore, if you’re unable to make financial or medical decisions on your own after an accident or illness, the POA will remain in effect.

You are generally also able to name a medical power of attorney. That’s a person who knows your wishes and can make health care decisions for you as a proxy. It’s also known as a health care proxy. If you can’t make decisions on your own, the health care proxy kicks in. Your health care proxy should know your wishes, as far as how you’d like doctors to treat you, if you can’t make decisions on your own. This may also accompany a living will, which expresses your wishes on continuing life support, if you’re terminally ill or being kept alive by machines.

Reference: WTOP (May 21, 2020) “How to Set Up a Power of Attorney”

How Can Estate Planning Protect Me from COVID-19?

There are several things you need to consider, especially during this COVID-19 situation and your estate planning, explains WFMY.com in the recent article “A different kind of coronavirus protection: Wills & Power of Attorney documents.”

A financial power of attorney is first on the list of things to consider. This essential legal document gives a trusted agent the authority to make financial decisions on your behalf if you become incapacitated.  Most people have their estate planning attorney draft the POA to go into effect once the principal or the person who’s giving the authority can no longer make decisions for themselves.

In addition, if you become ill and fall into a coma, you need someone to be able to also make medical decisions. A health care power of attorney or Health Care Proxy permits your agent to make medical decisions on your behalf. You can also sign a living will, which can state your wishes about healthcare decisions, especially end of life decisions.

A will can state your decisions for the distribution of your assets when you die. However, your property will stay in your name until that occurs. Another option is a living trust, which places your property in a trust for the benefit of a charity, your loved ones, or both. A trust may distribute the property more efficiently.  While the terms in your will and trust are important, you should also have a discussion with your family and let them know what you’re thinking. This will help avoid hard feelings after you’re gone.

It’s important to speak with an experienced estate planning attorney and talk to the people you want to be your POA attorney-in-fact, executor of your will and your trustee. Talk to your attorney about what happens when one of these key persons included in your planning dies.

You should also think about your parents and if they have an estate plan. You should know what will happen, if they become ill and need care. What happens if they get Alzheimer’s or another type of dementia?

You should make certain that you and those you love, have legal estate planning documents in place prepared by an experienced estate planning attorney.

From there, review your plan every few years with your attorney, because things change.

Reference: WFMY.com (April 22, 2020) “A different kind of coronavirus protection: Wills & Power of Attorney documents”

 

What Is an Advance Directive and Why You Need This Document?

The coronavirus pandemic has had an impact on the entire world. No wonder—it’s a frightening disease that experts are just beginning to understand. Many of us are asking ourselves: Am I ready for a worst-case scenario? Anyone who does not have the health care portion of their estate plan in order, needs to address it now, says the timely article “COVID-19 crisis highlights the importance of completing advance directives” from Cincinnati.com.

The topic of an advance directive used to be introduced with a question about what would happen if a person were in a car accident, rushed to the hospital and unable to convey their wishes for care.  The question has now become, what if a sudden onset of COVID-19 occurred and you were unable to speak on your own behalf? Would your loved ones know what you would want or would they have to guess?  All adults—that is, anyone over the age of 18—should have an advance directive. The process of creating this and other health care-related estate planning documents will provide the answers to your loved ones, while helping you work through your wishes. Here’s how to start:

What matters to you? Give this considerable thought. What is important to you, who best knows and understands you and who would you trust to make critical decisions on your behalf in the event of a medical emergency? What medical treatment would you want—or not want—and who can you count on to carry out your wishes?

Get documents in order so your wishes are carried out. Your estate planning attorney can help you draft and execute the documents you need so you can be confident that they will be treated as legitimate by health care providers. The estate planning lawyer will know how to execute the documents, so they are in compliance with your state’s laws. Here’s what you’ll want:

  • A living will which records your wishes for medical treatment if you cannot speak on your own behalf.
  • Medical power of attorney to designate a person to make health care decisions when you are not able to do so. The person is referred to as an agent, surrogate or proxy.
  • A HIPAA release form so the person you designate may speak with your medical care providers.

Note that none of these documents concerns distribution of your personal property and assets. For that, you’ll want a will or revocable living trust which your estate planning attorney can prepare for you.

Talk to loved ones now. Consider this conversation a gift to them. This alleviates them from a lifetime of wondering if they did the right thing for you. Have a forthright conversation with them, let them know about the documents you have had prepared and what your wishes are.

Reference: Cincinnati.com (April 27, 2020) “COVID-19 crisis highlights the importance of completing advance directives”

 

How Do I Start My Estate Plan?

The decision to start an estate plan is critical for all families but it can also be a challenge. In many cases, the greatest impediment families face initially is discussing death, especially the deaths of family members. Forbes’ recent article entitled “Estate Planning 101: Tackling Your Estate Plan” suggests several life events that will trigger the need to start an estate plan for your family or business.

The article also reminds us that it’s important to think about what might happen to you or someone in your family, in the event of a substantial life change. Here are some life events that can necessitate the need for an estate plan and a visit with your attorney:

  • A marriage;
  • The birth or adoption of a child or grandchild
  • The start of a new business
  • A significant increase in net worth
  • Changes in the tax laws
  • The death of a spouse or family member
  • Receiving an inheritance
  • A divorce
  • The sale of a business or property

There is no exact standard for when you should start creating your estate plan but if any of these events happen to you or your family it would be wise to start the conversation. While planning your estate may feel overwhelming, laborious, or expensive, not having a plan can be financially devastating, and can add stress to the situation.

Estate planning is a continuous process that should be tracked and reviewed annually. Let’s look at the steps for creating an estate plan:

Understand the Basics. First, learn the basics of estate planning and understand how the gift and estate tax laws may have an effect on your assets. Contact an experienced estate planning attorney. It is not wise to prepare your documents from an online source as those forms are generic and not specific to the state you live in.

Identify Your Objectives. Map out your objectives and select possible guardians, executors, trustees, heirs and other details with your attorney. You should also draft a personal financial statement, detailing a breakdown of your assets and liabilities.

Look at Your Insurance. Third, you should review what you have for life insurance to be certain that it’s aligned with and structured appropriately for your objectives. You may need to look into life insurance as a way to protect your family and income, if you haven’t done so already.

Finalize the Design Of Your Estate Plan. Finalize your estate planning design with the help of your estate planning attorney. Review your fiduciaries and your will, powers of attorney, trusts, healthcare proxy and a living will.

Sign your Documents. Next, you need to sign the documents.

Visit Your Plan Periodically. Finally, review your plan every few years or when there is a life event in your family.

Now that you have the basics under your belt, it should feel easier to address this important task.

Reference: Forbes (March 11, 2020) “Estate Planning 101: Tackling Your Estate Plan”

 

A Good Move to Make during the Pandemic

While most of those infected with COVID-19 will recover, about 20% need hospitalization and in the absence of widely approved treatment those who are placed in the ICU can be in grave danger.  Thousands of deaths from the coronavirus is making many of us look at death more seriously than we would otherwise. With our major health crisis, it’s not really the time to delay creating a will if you don’t have one already. Many Americans are looking to create a will and making a will is a good move to make during the Pandemic. If you don’t have this important document in place, it’s critical that you create one immediately — just in case.

Motley Fool’s recent article entitled “The 1 Move You Must Make During the COVID-19 Crisis” says that about 37% of Americans have a will. Without one, you’ll risk having little to no say over what happens to your assets in the event of your passing.

It’s not uncommon for people to say things like, “I’m not rich and have very little money to my name, so who cares who gets it after I pass?” This is not so. Even if you only have a modest amount of assets, it’s wise to make out a will, so your wishes are carried out.  If you have minor children, you need to designate a guardian to care for them, if you should die and they don’t have another living parent. This isn’t a question you want to leave unanswered and you don’t want to leave your family members to fight over who will take on the assume the responsibility of taking in your children.

Create a will with the help of an estate planning attorney. If you create one online, you risk missing nuances that may be important in the event of your passing. If your estate is somewhat complex, it’s worth the money to use a legal expert.  Another estate-planning document to create includes a financial power of attorney which designates someone to make financial decisions on your behalf, if you can’t.

A healthcare proxy is a person who can make medical decisions on your behalf. Ask your estate planning attorney to help you determine which documents will benefit you. This document could give you and your loved ones peace of mind, when comfort goes a long way.

Reference: Motley Fool (April 6, 2020) “The 1 Move You Must Make During the COVID-19 Crisis”

 

Requests for Estate Plans Reflect Fears about Coronavirus

Estate planning lawyers have always known that estate planning is not about “if,” but about “when.” The current health pandemic has given many people a wake-up call and estate plans  reflect fears about Coronavirus. They realize there’s no time to procrastinate, reports the article “Surge on wills: Fearing death by coronavirus, people ask lawyers to write their last wishes” from InsuranceNews.net. Legal professionals urge everyone and not just the elderly or the wealthy to put their end-of-life plans in writing. The last time estate planning attorneys saw this type of surge was in 2012 when wealthy people were worried that Congress was about to lower the threshold of the estate tax. Today, everyone is worried.

Top priorities are creating a living will stating your wishes if you become incapacitated, designating a surrogate or a proxy to make medical decisions on your behalf, granting power of attorney to someone who can make legal and financial decisions and preparing advance directives, such as “Do Not Resuscitate” orders.

An estate plan including a last will and testament (and often trusts) that detail what you want to happen to assets and who will be guardian to minor children upon your death, spares your family the fights, legal costs and hours in court that can result when there is no estate plan.

The coronavirus has created a new problem for families. In the past, a health care surrogate would be in the hospital with you, talking to healthcare providers and making decisions on your behalf. However, now there are no visitors allowed in hospitals and patients are completely isolated. Estate planning attorneys are recommending that specific language be added to any end of life documents that authorize a surrogate to give instructions by phone, email or during an online conference.  Any prior documents that may have prohibited intubation need to be revised, since intubation is part of treatment for COVID-19 and not necessarily just an end-of-life stage.

Attorneys are finding ways to ensure that documents are properly witnessed and signed. In some states, remote signings are being permitted, while other states, Florida in particular, still require two in-person witnesses, when a will or other estate planning documents are being signed. There are many stories of people who have put off having their wills prepared, figuring out succession plans that usually take years to plan and people coming to terms with what they want to happen to their assets.

Equally concerning are seniors in nursing homes who have not reviewed their wills in many years and are not able to make changes now. Older adults and relatives are struggling with awkward and urgent circumstances, when they are confined to nursing homes or senior communities with no visitors.

Reference: InsuranceNews.net (April 3, 2020) “Surge on wills: Fearing death by coronavirus, people ask lawyers to write their last wishes”

 

Do I Really Need a Health Care Proxy?

The Pauls Valley Democrat’s recent article entitled “Advance directives and living wills” explains that an Advance Directive has three parts:

  • A living will
  • Naming of your health care agent; and
  • Your directions for anatomical gifts.

The individual that you name as your Health Care Proxy will make decisions for your treatment and care, if you’re unable to do so. These decisions may extend to all medical issues and aren’t limited to end-stage, life determining decisions that are mentioned in your living will. This is a form of power of attorney that authorizes your agent to act in your behalf to address issues like these:

  1. Accessing your medical information
  2. Discussing your treatment options with your healthcare providers
  3. Getting second opinions on your diagnosis
  4. Selecting and authorizing various medical tests
  5. Your placement in a hospital or care facility
  6. Transferring your care to a new physician; and
  7. Communicating your wishes on life support in terminal or unconscious situations.

For end of life decisions, your health care proxy is bound by your written wishes as expressed in your living will. Life support can be terminated, only if you so authorize in writing. Your healthcare proxy can’t make that decision for you, because that is “personal” to you. You may select one or more persons to act as your proxy, although if two are selected, you should predefine what to do in the event of a conflict.

A best practice is to choose a person who’s younger than you who is geographically close, a person with time to assist you and with whom you’re willing to share in advance your wishes, likes and dislikes as to medical care. This person should be trusted to act and honor your wishes.

Because many decisions relate to your very personal concerns about religion, death and dying, these feelings should be shared with your health care proxy before any serious situation.

The Advance Directive is a very important document that pertains to your wishes, as they relate to medical care, end-of-life and death.

Parts I and II can discuss your wishes for care treatment, as well as your choice of a person to represent your wishes. These are two very important issues. Take the time to consider the advance written expression of your own wishes. Speak with  your estate planning attorney if you have any concerns.

Reference: Pauls Valley Democrat (Feb. 12, 2020) “Advance directives and living wills”