Benjamin Franklin once said, “In this world, nothing can be said to be certain except death and taxes.” With our businesses and schools disrupted, now is the time to take control of our future in any way we can. With taxes deferred for a period, that leaves death or its distant cousin – mild to severe health issues – as outcomes we must prepare for. While we cannot absolutely control who will contract COVID-19 and who will get sick, there is one thing we can do to be pro-active: create an estate plan.
You may have put it off for a myriad of reasons but now, you have nothing but time. Talk to your spouse or significant other about a plan for your family members and assets should anyone fall ill. Ensuring that medical directive and estate wishes are planned for and taken care of will help put your mind at ease. While these are difficult issues to consider, doing so is the best gift you can give your family right now.
Everyone over the age of 18 should have these four basic estate planning documents and an optional fifth document:
1. Last Will & Testament appoints the person (Executor) to follow your directives and handle final affairs following your death. It is also used to appoint a Legal Guardian of your children if they are minors. Even if you do not have a lot of assets, it is important to give the Executor the authority to act on your behalf, especially if it is not your spouse. Digital assets such as your social media profiles and email accounts should also be addressed in your will and in your Financial Power of Attorney.
2. Financial Power of Attorney (POA) allows someone to handle your financial affairs while you are alive if you are unable to do so. The person granted POA must be someone you trust who is familiar with your financial affairs. POA can also include a provision for the appointment of a Legal Guardian of your children if you become incapacitated.
3. Medical or Health Care Power of Attorney (Medical POA) appoints someone to make medical decisions on your behalf. In the age of COVID-19, this is one of the most important documents (along with your Financial POA) that needs to be prepared. Medical POA can include treatment decisions as well as taking you off of a life support system. Making these decisions when you are of stable mind and body is especially critical as family members who live out of state are not eligible to apply to become your Medical POA or Legal Guardian if you are faced with an emergency or medical crisis.
4. HIPAA Release allows you to receive medical information about your spouse, child or other family members and permits you to deal with their insurance company and providers. Without a release form, you will not be granted access to this information even if they are on your insurance policy. If you have college students on your insurance plan, it is of heightened importance to complete this document as you may need to obtain care for them during the pandemic.
5. (Optional) Trust allows you to control how and when your assets are distributed following your death. Creating a trust is particularly helpful if you have been divorced, remarried, have minor children or any other familial complications. Setting up a trust can also help avoid the probate process and allow for a faster and less expensive manner of managing your assets and your final expenses following your death.
There is no one-size-fits-all template when it comes to estate planning so working with an experienced trusts and estates attorney is very important. While it may be tempting, do not attempt to make these documents on your own via online will and trust kits as there are many pitfalls to doing so. In this time of social distancing, consultations with an attorney can be done by telephone or video conference with many states beginning to utilize remote or electronic notarizations to execute final plans. In the tenuous times that we find ourselves, special protocols for witness, execution, and notarizations are being utilized by estate planning professionals to make sure that documents are finally prepared and executed.
While we don’t know what tomorrow will bring, we do have a choice in how we show up. Tackling these estate planning items will make you and your loved ones feel better, I promise.