Certain urgent estate planning issues have arisen during the present Covid 19 health crisis. These issues concern getting diagnosed by a physician, intubation and the use of Internet based communication (e.g., Skype and Zoom) instead of in person meetings. Let’s discuss how they affect your power of attorney, advance health care directive, and living trust.
If you are incapacitated, who will pay your bills and sign contracts on your behalf? A broadly drafted power of attorney allows your agent to make decisions regarding your financial, legal and property affairs (excluding the trust) on your behalf. Oftentimes, powers of attorney are drafted to become effective upon incapacity. Determining such incapacity usually involves one or more physician certificates of incapacity. This means an in person physician’s visit. Nowadays, with social distancing, such consultations are difficult to arrange. Accordingly, if your power of attorney is effective upon incapacity you may wish to make it effective immediately (i.e., upon signing).
Similarly, with one’s living trust, transfer of control from an incapacitated settlor to the designated successor trustee often requires attaching one or more certificates of incapacity to an Affidavit of Successor Trustee. Appointing someone as a current co-trustee (now) and authorizing each co-trustee to act independently (without the other co-trustee’s involvement) avoids the certificate of incapacity.
Financial assets (other than retirement accounts) are oftentimes better managed inside of a trust; financial institutions are often wary of accepting powers of attorney. You may consider either transferring bank accounts into your trust – and so avoid any problems with the bank not accepting the power of attorney — or request and complete the bank’s own in-house (propriety) power of attorney form.
With social distancing, the use of the Internet based communication platforms, such as Zoom and Skype, is the new normal. You may wish to authorize third parties to accept the use of such internet based communications with any agent and/or trustee representing your interests. This would assist urgent health care decisions being made given that the agent is not able to be present to sign documents at the hospital.
Thus, a written, signed and dated authorization by you allowing third parties (hospitals, doctors, banks, etc.) to communicate and accept instructions from your agents by means of Skype and Zoom and, importantly, your agreeing to hold harmless from any liability such third parties, might enable your agents being able to act on your behalf over the Internet.
Existing advance health care directives do not contemplate Covid-19. That is, health care directives may expressly prohibit the use of any artificial means to keep you alive. That might prevent your being intubated — placed on a ventilator — even though that would help you to recover from a severe respiratory illness. Accordingly, you may want to sign a new advanced health care directive, or at least to sign a written statement, that authorizes intubation in the case of severe respiratory illness; you may also consider placing a time limit on intubation. Also, you may want to authorize the use of experimental drugs that might assist in the treatment of Covid-19.
Anyone wishing guidance to address any of the issues discussed above should consult an attorney. Attorneys are assisting clients over the phone and Internet.
Dennis A. Fordham, Attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at dennis@DennisFordhamLaw.com and 707-263-3235.