By: Sol S. Reifer
Some of the traditional estate planning tools, such as your Durable General Power of Attorney, Medical Power of Attorney, and Directive to Physicians and Family or Surrogates will need to be updated to handle the challenges presented by COVID-19.
It goes without saying that the aforementioned key advance directives should be in place for everyone; especially under the current circumstances. Make sure your elderly clients and family members who are in the high risk category update their advance directives.
General Durable Powers of Attorney
Evaluate “springing” General Durable Powers of Attorney document. This variation of the Power of Attorney becomes effective ONLY if you are incapacitated and cannot manage your financial and business affairs. Evaluate changing that to a new power that is non-springing and takes effect immediately ( ie; not contingent on the principal being incapacitated) so the designated agent can help you immediately. The restriction of only being effective when you are disabled might make this form useless in the current environment as the springing mechanism often requires two physicians to evaluate you and sign confirming letters. That may be difficult to secure in the current situation!
Medical Power of Attorney and Directive to Physicians and Family or Surrogates
In the current COVID -19 environment confirm whether your health care directives expressly prohibit intubation. Intubation is the process of inserting an endotracheal tube through the mouth and then into the airway. This is done so the patient can be placed on a ventilator to assist with breathing during anesthesia, sedation, or severe illness. With COVID-19, intubation may be necessary to survive a bout of the virus! This should be distinguished from a statement that you may not want intubation if you are in a ‘persistent vegetative state’ or terminally ill with a short time to live. This might require revising both the Medical Power of Attorney and the Directive to Physicians and Family or Surrogates.
Another COVID -19 consideration is whether experimental medical treatments are permitted under your health care directives. This might be critical to survival. You might want to consider modifying your health care directives to expressly permit experimental treatments.
In the past, if your health care agent made medical decisions, he or she would be in the hospital speaking to your care providers, and perhaps signing documents. With COVID-19 being so contagious, and many hospitals overwhelmed, this is not practical. Consider modifying your documents to expressly authorize electronic communications of decisions by your agent: FaceTime, Zoom, electronically signed documents, etc.
Sample Clause: “I expressly authorize my Agent to communicate decisions to any medical provider verbally, in person, by telephone, via email, via web conference including but not limited to such services as Skype, FaceTime, or in any other manner appropriate to the circumstances. Further, I expressly hold harmless any medical provider for relying on such communications and directives by my Agent. The express purpose of this provision is to foster decision making by my Agent in remote or indirect manners that may be necessary or advisable given whatever circumstances accompany such decision making.”
Contact Sol S. Reifer, JD, LL.M-Estate Planning in the Trusts and Estate Department of Coats Rose if you have any questions or need our assistance with updating your advance directives.
Sol is a Director in the Dallas office, with over 40 years’ experience in probate administration, trusts and estate planning law, as well as, asset protection. He is involved in structuring family estates to maximize the amount of assets that pass to succeeding generations through the use of various types of trusts and business entities that will minimize the amount of shrinkage due to “transfer taxes” pertaining to such transfers (i.e, the estate, gift and generation skipping taxes). His practice includes legal consultation and structuring of business and family investment entities to protect key family assets from litigation risks. He counsels clients that estate planning done correctly is multi-generational. His philosophy is that estate planning is a lifetime “process” of planning for the accumulation, conservation and distribution of wealth between the generations.
Sol has received the designation as an Accredited Estate Planner from the National Association of Estate Planners, 1995, and was selected to “5-Star” Wealth Manager in 2010-2021 and to the Texas Super Lawyers list in 2011-2020.