COVID-19, the respiratory illness caused by the novel coronavirus, is cruel in many ways. The speed with which it destroys the human body, especially in patients who are elderly or have an underlying medical condition, is extraordinary. In addition, because of the disease’s extremely infectious nature, patients infected with COVID-19 are generally barred from receiving visits from loved ones. Infected patients, very often, have only minutes to say their goodbyes to loved ones (these minutes are facilitated by doctors and nurses, over apps such as FaceTime). And they have no appreciable opportunity to adequately settle their affairs.
It is, of course, our fervent hope that neither we nor our loved ones will be infected by COVID-19. And it is our responsibility to take all practicable measures to prevent infection, such as social distancing.
It is also our responsibility to settle our affairs when we have the capacity to do so. If we don’t, our loved ones may have to endure an extremely expensive and contentious probate process; this, in turn, could tear them apart. Thus, every one of us, while we are still able to do so, should set up an estate plan consisting of these four documents:
Will
A will is a legal document whose function is to direct how property should be divided upon death.
Living Trust
When most people think of an estate plan, they very often think only of a will. While a will is of vital importance, the problem with having just a will is that it must be submitted to probate in order to be effectuated. And the probate process, as noted, is extremely expensive and contentious. To avoid the probate process, a will must be combined with a living trust.
A living trust is a legal structure that holds assets for the benefit of named beneficiaries. The person who creates the living trust is typically the original trustee and the person for whose benefit the trust is maintained. The trust declaration, i.e., the legal document through which a living trust is created, specifies how the assets in the trust should be divided upon death. The trust declaration also sets out who should take over as trustee when the original trustee either dies or becomes incapacitated.
General Durable Power of Attorney
A general durable power of attorney grants to an agent authority over a principal’s transactions and other matters. It is referred to as “durable” because it is effective when the principal becomes incapacitated – i.e., legally unable to make decisions for him or herself.
Advance Health Care Directive
A general power of attorney does not apply to medical decisions. To grant an agent authority to make medical and end-of-life decisions, and advance health care directive must be created. An advance health care directive tells doctors exactly who is authorized to make health care decisions on behalf of a person who no longer can. In addition, it provides this authorized person with specific instructions as to what medical decisions should be made.
An estate plan, including an advance health care directive, is especially important in light of COVID-19.
If you do not have an estate plan consisting of all four of the aforementioned documents, contact one of our experienced attorneys right away.