As the fast-paced spin of the world seems to slow to a crawl, many of us are left scrambling to figure out what to do next. The coronavirus outbreak is unlike anything that has happened in our lifetimes. It struck hard, overturning worldwide commerce and compromising the health and well-being of countless families. And, the epicenter of the attack in the United States is New York City. As you are reading this, we are all secluded indoors and practicing social distancing to protect our health, as best we can.
Although these temporary lifestyle changes may not be easy, we can use them as opportunities to make meaningful changes and improvements. We have come to a place where cell phones, text messages and emails have not only created a demand for instant communication, but this technology has also changed the way we spend our time. It seems that we are spending more time communicating with technology and sacrificing more meaningful connections with others.
Having to stay inside has provided us with a wonderful opportunity to give ourselves and our loved ones some of that precious time we value, which may have been overlooked, that can be very beneficial.
With people around us, both friends and family, either sick or r”l passing away, we can’t help but feel more of a sense of gratitude and appreciation for those we love, and are motivated to spend some of our newfound time improving the quality of our relationships and ensuring our loved ones have the support they need in these trying times. In the past, protecting ourselves and our loved ones legally may have been in the back of our minds, but now, in this current environment, our concerns have become much more relevant.
As an estate planning and elder law attorney, I am here to assist and guide you, so you can have what you need legally, to protect yourself and those you love - particularly in these very turbulent and uncertain times. There couldn’t be a more important time to take the initiative and act to protect you and your loved ones. Now is the time to get this done.
Most Immediately: Protect Yourself And Your Loved Ones From Incapacity
If this crisis has you questioning what can be done to protect you and your family should you become incapacitated, you are not alone. Many people who have not done planning are concerned, wondering, and are at risk.
No one wants to face an unexpected medical emergency, rendering them unable to speak for themselves or manage their own finances or medical care. But, if it happens, can you say you are prepared? Are your parents prepared?
If you are in a situation where you cannot make medical decisions for yourself, someone else will make those decisions for you. It will be your choice who that person(s) will be, and, keep in mind that not designating someone is also a choice.
In order to protect yourself if you lose capacity, or act for an aging parent if they lose capacity, there are basic legal documents that need to be prepared.
The most common medical directives are health care proxies, living wills, and HIPAA authorizations. They give the legal authority to someone you choose, who knows you and your wishes, to speak for you regarding any medical issues - if you cannot act on your own behalf.
If you are an observant Jew, you want to make sure medical decisions are made according to Jewish law. There are specific health medical care directives for this as well, which put hospitals on notice that you need to be treated in a specific way.
Without the right legal documentation, it’s risky, because the person in charge becomes the hospital staff members, or a court, knowing nothing about you, who can choose the last person you want in charge or a total stranger.
When you have the proper advance medical directives prepared in advance, you choose who is in charge of your medical decisions, and the person you choose will know your wishes, so your family members won’t be conflicted guessing what you may have wanted, or ague about who will make decisions on end-of-life issues.
Power of Attorney
If you can’t take care of your finances, either for reasons of mental or physical health, you need to have a legal document, written when you are mentally well and stable. A power of attorney lets you grant authority to someone of your choosing to be able to act on your behalf to make decisions in specified matters or in all matters. It is your decision as to what authority they have.
Not all powers of attorney are created equally. While standard ones give the person you choose the authority to act on your behalf financially, not all have a statutory gift rider and necessary language plan for incapacity and disability, and long-term care (Medicaid) planning. Also, these documents need to follow state statute formalities, which means that if they are not prepared properly, it is like having nothing at all.
Your choice to put the basic documents in place will reduce family disputes and keep everyone out of court. This is particularly important now, since the courts are operating at a diminished capacity and it would be extremely difficult for family members to get the legal authority they need to act on your behalf in a time- sensitive situation.
Planning For After You’re Gone
Unfortunately, we don’t live forever, and don’t know how long we will be around. We owe it to those we love to plan for that eventuality, to make sure our wishes are carried out and our belongings pass easily and efficiently to our loved ones.
Most people have heard about wills. They are legal documents which specify how we want to transfer our belongings, and express our wishes for the guardianship of minor children after we pass. But, did you know that before anything gets distributed, a court must approve the will and the executor, who manages the distributions after you’re gone? Did you know that there are state formalities that if not complied with, can derail your will, preventing your wishes from being realized? Or, that the court process is public and anyone wanting to see who is receiving your belongings and what they are receiving can? Did you know that a will does nothing to help plan for incapacity and disability?
So, what can you do about the limitations of planning with a will? Trusts are good alternatives and beneficial for most people. A trust is operational while you are alive, and after you are no longer here. You choose who is in charge to manage the trust while you’re living, you maintain control, and can prepare for the possibility of incapacity and disability. After you’re gone, your belongings can be distributed to your loved ones easily, efficiently, and privately, without requiring court approval for your trust document or those you choose to manage and distribute your Trust belongings - no court intervention.