Is your estate plan prepared for COVID-19?

There has been so much news lately about preparing for the potential spread of the COVID-19 virus.  Most of those reports talk about avoiding large gatherings, what will happen if schools close, buying supplies etc.  One item I haven’t seen discussed is making sure your legal documents are in order in case you get sick. There are several documents that all adults regardless of age or wealth should have in place to allow someone else to step in and take care of you if you become ill. These include a Massachusetts Healthcare Proxy, a Personal Directive and a Durable Power of Attorney.  Without these documents your loved ones will have to go to Court to get the legal authority needed to assist you when you are ill.

It often comes as a surprise to people that our family does not have the legal ability to make medical decisions for us if we become ill and cannot make medical decisions for our self.  Just because we are married to someone does not automatically give our spouse the legal right to make our medical decisions.  Adult children are not automatically entitled to make their parent’s medical decisions and parents are not legally authorized to make medical decisions for adult children. 

Therefore, every adult should have a valid Massachusetts Healthcare Proxy granting someone else the legal right to make medical decisions for you if you get sick and cannot make those medical decisions for yourself. This person is called your healthcare agent. You should also designate an alternate healthcare agent in case your first choice is not available.  If you don’t have a Healthcare Proxy and become very ill, your loved ones will need to seek Guardianship of you in the Probate Court in order to have the legal ability to take care of you.  This usually costs several thousand dollars and takes several months to accomplish.   

A Personal Directive (also known as a Living Will) is vital to make sure your healthcare agent knows how you want to be cared for.  It’s guidance to help your healthcare agent make decisions that are in line with the types of decisions you would make for yourself. You have a much better chance of getting the type of care you would have chosen for yourself if you execute a Personal Directive. 

Many people also don’t realize there are a lot of legal and financial tasks that we are only able to do for ourselves unless we legally authorize someone else to be able to act for us.  For example, many people have individual retirement accounts. These accounts cannot be owned jointly.  Therefore, if you get sick and need to take money out of your retirement account to pay bills or to pay for care, no one else has the legal ability to withdraw that money from the account for you.  A joint bank account may allow the joint owner to pay bills for you but many people have savings and other accounts solely in their own name.  No one can access those individually owned accounts on your behalf.  If you need long term nursing home care for some reason, your spouse doesn’t have the legal authority take your name off the deed to your house in order to avoid MassHealth placing a lien on your home. 

A Durable Power of Attorney is a legal document in which you grant someone else the legal ability to manage financial and legal items on your behalf.  This person is called your Attorney in Fact or Agent under your Durable Power of Attorney.  Utilizing the Durable Power of Attorney, your Attorney in Fact can withdraw money from your retirement account if you need it.  The Agent can sign checks on your checking account to pay your bills even if that person isn’t named on the account.  If your spouse is your Agent, your spouse would be able to sign a deed on your behalf transfering the home into your spouse’s name alone and thus avoiding a MassHealth lien.  If you don’t have a Durable Power of Attorney and become very ill, your loved ones will need to seek Conservatorship of you in the Probate Court in order to get the legal ability to assist you in taking care of those and many other legal and financial issues that arise. Seeking Conservatorship also usually costs several thousand dollars and takes several months to accomplish.  Since Conservatorship and Guardianship are two different legal processes not everyone who needs a Conservatorship will also need a Guardianship (or vice versa) but when someone needs both the cost is often twice as much.

So, while you are stocking up on Clorox wipes and hand sanitizer to prepare for a potential Corona virus epidemic take a look at your estate plan.  Do you have a Massachusetts Healthcare Proxy, Personal Directive and Durable Power of Attorney?  If you don’t you should.   How do you get them?  You should see a qualified estate planning attorney who can guide you through the process of determining what you need, who should act on your behalf if you get sick and then getting the right documents in place to effectuate your plan.  Please call our office if you would like to meet with one of our attorneys to get started.