By John A. Meier, II
Since the emergence of COVID-19, our lives have changed in ways that were almost impossible to imagine outside of science-fiction novels and movies. Rather than discuss the legal aspects of the virus and actions taken by local, state, and federal governments and agencies, I want to share some examples of how effective planning can help individuals and families when unexpected events occur.
These are some of the basic planning documents everyone should consider having at this time. In my opinion, in order of importance, they are:
1. An Advance Directive for Health Care
2. A comprehensive Power of Attorney
3. A general HIPAA (Health Insurance Portability and Accountability Act) Release
4. Designation of a Standby Guardian
5. A Trust
6. An updated Will
I will explore each of these in more detail in future articles. In this article, I want to share how each of these has made a significant difference in the lives and well-being of others during these trying times.
During the time when new laws and isolation orders were being issued, a person was informed she must have surgery to address a newly discovered aggressive type of cancer. She was told that the surgery will be difficult and would be followed by an extensive and long rehabilitation process. She was told there were going to be times throughout her treatment and rehabilitation when she would not be able to communicate with her doctors and medical services providers. She was not married and did not have any living children. One of the documents we prepared for her was an Advance Directive for Health Care. In her Advance Directive for Health Care, she appointed someone (her health care agent) and gave that person the authority to communicate her heath care decisions when she was not able to do so on her own. After her Advance Directive for Health Care was in place, a copy was provided to her doctors and the hospital where her surgery and rehabilitation was to take place. The doctors and hospital staff were able to discuss with her what she wanted and establish communication protocols for communications with the health care agent. This helped avoid some of the terrible situations where people wind up in a hospital or some other facility and no one can communicate with them or with others on their behalf.
The example I chose for this section is not about the benefits of having a power of attorney but the consequences of not having one. An elderly gentleman had a severe stroke and could no longer pay his bills or manage his property. Because he did not have a power of attorney, it was necessary to have a conservator appointed by the Court and to have the Court give the conservator legal authority to pay the gentleman's bills and manage his property. With the limited public access to Courts and other isolation issues because of COVID-19, this time critical and already difficult process became much more complicated and expensive. If, prior to his debilitating stroke, the gentleman had appointed an attorney-in-fact (often called an "agent") and given the agent the authority to pay his bills and manage his property, all of these issues could have been avoided.
This was a document I used a great deal on behalf of my mother. She did not hear very well, or more accurately did not have much patience when being routed through the various automated phone options when dealing with insurance companies and others. Because she was still able to communicate, her Advance Directive for Health Care was not legally in effect. To fill the gap between the time she executed her planning documents until her Advance Directive for Health Care became effective, I was able to use her general HIPAA release to enable me to communicate with others on her behalf. This included her insurance companies, doctor, pharmacist, and others. This improved the quality of her life and, I believe, helped her to receive the care and benefits she needed and deserved. With the high number of elderly and at-risk people more susceptible to COVID-19 or at a greater risk of serious adverse health consequences, it is important to make sure others have the documents and authority necessary to meet and communicate with essential health care services providers when appropriate.
For single parents that have minor children, it is important that they designate a person to be the standby guardian for their minor children. If a health care professional determines that, due to the parent's physical or mental health condition they are not able to care for their minor children, the standby guardianship becomes effective and the person designated in the Standby Guardian document shall become the standby guardian of the minor children. The standby guardian will have the usual authorities of a guardian appointed by the Court. There are many procedural requirements that must be met to have a valid Designation of Standby Guardian. If they are met, parents of minor children will make it possible for someone to have the authority to provide care for their minor children for up to 120 days. This could make a significant difference in the care for minor children if their parents suddenly become seriously ill and are hospitalized for an extended period. If you have not done this it may be necessary for the Division of Family and Children Services or others to become involved.
The limited access to courts has placed more emphasis on the benefits of using trusts. One type of trust most often used is commonly referred to as a Revocable Living Trust or simply a Living Trust. The Living Trust is something that is established by someone while he or she is alive. After the Trust is established, assets are transferred to the Trustee of the Trust (often the same person that established the Trust) where they are used and administered as provided in the Trust document. In addition to providing care for the person that established the Trust, the Trustee can be also directed to provide care for others.
Trusts can also be a way to efficiently manage the transfer of assets in the Trust after someone dies. Because it can now take months to have a Will admitted for probate, a Living Trust can often provide a faster and more efficient way to transfer assets after death, often avoiding significant losses. For example, in a recent situation a person died while the courts were effectively closed due to COVID-19 concerns. This individual owned a significant amount of stocks and other investments at the time of his death. Before someone could be appointed by the court to represent the Estate, the stock markets plummeted greatly reducing the value of the assets. If the assets had been in a trust, the Trustee could have acted very quickly to avoid the losses.
With all the uncertainties in today's world, much difficulty, hardship, and cost can be avoided by making sure your Will is valid and up to date with respect to current laws and with respect to your current circumstances. It is often devastating for surviving loved ones to find out there are significant problems in a Will that can no longer be corrected. The following are a couple of recent examples of situations that could have been avoided.
A married couple obtained Wills almost twenty years ago. Both the husband and wife had children from previous marriages. The husband died about three years later. The husband's Will left everything to his wife. The wife's Will left everything to her husband. Neither Will addressed what would happen after the death of the survivor. When the wife died seventeen years later, because the wife's Will did not include her wishes for the distribution of her assets if her husband failed to survive her, the laws in effect when she died required that all of her assets were to be given to her deceased husband's children to the total exclusion of her children. It is possible this is what she wanted, but she was very close with all her children and had become somewhat estranged from her husband's children during the seventeen years since her husband's death.
Another recent situation involved a gentleman that prepared his own Will and took it to a place where they offer notary services to have it signed. Two individuals in the store at that time acted as witnesses to his signing of his Will and the store's employee notarized the Will. Unfortunately, the Will was missing a very important document making it necessary to locate the witnesses and notary. The signatures of the witnesses on the Will are totally illegible and there were no printed names or other identifying information, such as addresses, that would have helped locate the witnesses. Without being able to locate the witnesses, it became very difficult and expensive to try and have the Will admitted for probate. All of this could have been easily fixed while the gentleman was alive.
In conclusion, the current circumstances involving COVID-19 and future uncertainty make it more important than ever to have appropriate, up to date, valid planning documents.
John Meier has been assisting clients with their estate planning, long term care planning, elder law, trust administration, and probate needs since June of 1985. John heads up FCW's Estate Planning and Probate divisions and continues to focus his efforts assisting individuals and families with their estate planning, long term care, elder law, probate, and trust administration needs. John has been named to Georgia's Legal Elite and Atlanta Magazine's Top Wealth Managers, and currently serves as the City Attorney for Waleska, Georgia.He is also a Certified Trust and Financial Advisor, a nationally recognized certification, distinguishing him among his peers.