The COVID-19 pandemic brought with it the sudden reality-check of our own incapacity and mortality. We all now pause to ask the rhetorical questions: Who possesses the authority to pull the plug if I am in an irreversible coma? Who handles my finances if I am in an extended hospital stay recovering from COVID-19? How does my Will or Trust function to distribute my wealth if I do not recover from the virus, and the stock market is in a downward spiral? These questions should prompt everyone to revisit their existing estate planning documents, or finally move forward to adopt a comprehensive estate plan if none presently exists.
Some suggestions to keep in mind when a review of existing basic estate planning documents is taken follow:
Durable Power of Attorney for Health Care (and Living Wills)
Michigan statutes permit an individual to name and empower a patient advocate to make health care decisions when the patient is unable to participate in their own health care decision-making.
The proximity of the designated patient advocate is critical in the case of a medical emergency. It may make sense to identify a patient advocate who lives in close proximity to the patient, especially if travel bans reappear that preclude the advocate from traveling to visit the patient and direct the patient’s medical care providers.
If quarantines are necessary, it would be wise to add provisions to the instrument to authorize a patient advocate to communicate with health care providers electronically, including communications by video in order to converse remotely with physicians, or actually view the patient’s condition and expedite medical treatment decisions and plans.
Many durable powers of attorney for health care and living wills contain do-not-resuscitate (DNR) directions if the patient is in a coma. However, some COVID-19 treatment plans include medically induced comas. Some thought needs to be given if the DNR direction should apply to a COVID-19 patient who falls into a coma or whose medical treatment plan may include an induced coma.
HIPAA medical information releases should be refreshed and expanded to authorize the patient advocate to communicate with not only medical personnel but also share medical information with the patient’s extended family.
Durable Power of Attorney for Finances
If a COVID-19 patient is disabled or confined to hospital for an extended period, the attorney-in-fact, or agent named under a durable power of attorney for financial and property management should be empowered, in light of many of the challenges posed by the pandemic.
The power of attorney should include a grant to the agent to access the principal-patient’s digital assets, including email accounts, digital currencies, and online account credentials. Specifically, the instrument should expressly state that the authority given to the agent is considered the principal-patient’s lawful consent under all state and federal statutes to gain access to and provide directions with regard to the information contained in the digital assets.
With periodic stay-at-home orders and quarantines, the agent should also be empowered to exercise any grant of authority given to him or her by electronic means, including the ability to hold third-parties harmless for relying on agent’s claim of authority to act.
Some individuals rely on a Will to distribute their wealth after their death. A Will must be filed with the probate court and admitted to probate after the decedent’s death. Many probate courts were closed this past spring, along with thousands of businesses, during the pandemic. That closure caused many probate estates to be delayed, in effect frozen, until the courts later reopened. If the expected second wave of COVID-19 closes courts again, some thought might be given to a shift from the use of a Will to a revocable Trust as the primary tool to distribute wealth after the trust creator’s death.
Unlike a Will, a revocable Trust does not have to be formally admitted to probate, or supervised by a probate judge.
The successor trustee designated under a revocable Trust also can manage a patient’s assets by the successor trustee if the trust creator later becomes disabled or hospitalized, if the Trust is funded with the creator’s assets.
As with the other instruments in an estate plan, thought needs to be given to the proximity of the named personal representative of the decedent’s Will, or the designated successor trustee of their Trust, if that person lives far away and travel bans, stay-at-home orders or quarantines are back in place. Naming a fiduciary who is in close proximity to the patient may overcome many of these hurdles with regard to accessing the decedent’s assets.
Along with the pandemic comes far more volatile markets affecting all asset values, not just marketable securities. These rapidly changing values should cause an individual to review the dispositive provisions of their Trust (or their Will), transfer-on-death beneficiary designations to confirm if they still make sense.
A Trust’s dispositive provisions that refer to fair market values, dollar amounts, or the use of a pecuniary word formulae to identify what a beneficiary is to receive, may result in distorted distributions on the property owner’s death, depending on if market values are down, or up at the time of the owner’s death. It might be better to refer to percentages of a decedent’s estate, as opposed to specific dollar amounts, to assure fairness to all trust beneficiaries.
If an asset’s value is assessed prior to an economic or market adjustment, the Trust’s dispositive plan might result in one beneficiary receiving too much, or too little, which could provoke resentment that leads to trust litigation. The Trust’s dispositive provisions should contemplate disclaimers (or refusals to take distributions or certain assets) in order for the beneficiaries to achieve a more equitable distribution of all assets among trust beneficiaries consistent with the trust creator’s original intent under the Trust.
Michigan now permits an individual to expressly name a funeral representative to make decisions with regard to the disposition of the decedent’s final remains, e.g. burial or cremation. This law has been in place for only about five years so that many individuals have yet to make such a designation. Now is the time to consider naming a funeral representative and also provided direction on many of the other emotional decisions that must be made shortly after an individual’s death.
The COVID-19 pandemic has caused all of us to re-examine our mortality. There is no better time, or better reason, than now to pull existing estate planning documents, read them, and update them to address the uncertainty and new challenges posed by the pandemic.