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Estate Planning Must-Haves With COVID-19

COVID-19, social distancing, and sheltering-in-place brought new changes to our perspectives and the need to re-evaluate current estate planning documents (or lack thereof).  What many people don’t realize is that there are a couple of must haves for everyone, not just clients, with COVID-19 that everyone should know about and consider implementing now.  With those thoughts in mind, let’s look at these must haves.

  • Immediately review healthcare documents.

Everyone, particularly those age 60 and over or with a chronic underlying condition should immediately review their healthcare-related documents including: living will, DNR, healthcare proxy (a.k.a. healthcare power of attorney), and HIPAA release.  Additionally, everyone should immediately consider these documents for themselves if they do not have them.

Attorneys and advisors understand the need to have current documents reflecting the client’s current wishes, and an agent capable of and willing to act in addition to successors.  Apart from the obvious concerns, there are several critical issues with respect to these documents that may warrant immediate revision of these documents for many clients. These issues are specific to the current circumstances of the Coronavirus pandemic.

  • Consider changes to your document if the agent cannot be present.

Prior to COVID-19, very often an agent would physically be in the hospital or medical provider with the healthcare proxy in hand with the individual appointing them going into the hospital. Now, with social isolation and quarantines, physical presence might be impossible.

Consider adding language to all healthcare related documents where the client executing the healthcare power of attorney or proxy expressly authorizes the agent to direct medical providers by telephone, Skype, Zoom, FaceTime, email and other manner of communication.  COVID-19 is an unprecedented situation that is not contemplated in many of the forms and documents currently in use.  Adding this language should help the agent more effectively act and interact with the medical providers.

  • Review intubation prohibitions in health care documents.

Often, standard documents and forms include an absolute prohibition of intubation.  This can prove fatal if that person contracts COVID-19.  In most cases, clients’ intentions when signing these documents was that if they are in a terminal condition and there is really no hope of survival they do not want to be “hooked up to a bunch of tubes” while being kept artificially alive.  People over age 60 or with an underlying medical condition such as diabetes or COPD who contract the virus it would almost assuredly want to be intubated if it meant they would survive COVID-19.

Consequently, many people age 60 with COPD or diabetes might be very likely to survive COVID-19 if they are intubated. This situation differs from those contemplated in many living wills and other healthcare documents.  People with documents barring intubation in all circumstances should immediately revisit those documents and execute new documents that (1) expressly superseding the old documents, and (2) contain more reasonable intubation language are based upon the current circumstances.

As you can see, these must haves apply to everyone, and can help families and those affected with COVID-19 more effectively make health care decisions and obtain care.   As we’ve mentioned previously, hopefully, this “Brave New World’ is temporary, and we can all get back to our regular lives.  These must haves will allow more effective health care decision making in any event going forward.


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