Sitting down with an estate planner to develop an estate plan is a smart first step. But signing your documents is not the end of the process. In order to ensure your wishes and desires are protected, you need to have some frank conversations with your fiduciaries.
So I haven’t been public about this but my Aunt Karen passed away from Coronavirus complications three weeks ago. My Uncle is currently in hospital with pneumonia brought on by the virus. My Aunt was on a ventilator within 36 hours of going to the hospital and we never had a chance to speak with her. Our family was struck by how fast our family went from communicative to uncommunicative and not contactable via quarantine.
I’m using what I learned from my family’s experience to put out information about what folks can do to take back a little control in this situation. Whether you’re my client or worked with another attorney, referral partner, random colleague, future client, or just not sure what you should be doing, I’d like to offer some steps you can take to protect yourselves and your families, both physically and financially.
First, we can exercise compassionate citizenship and be cautious in our interactions with others to ensure their health (as well as our own). Our health status isn’t written on our faces so we should take care to stay the recommended distance away from others, especially those who are more susceptible to illness, and wash our hands to avoid spreading germs. COVID-19 is a dangerous virus for some people, but the good news is that a large majority of people have not been infected, and most of those who have become ill are recovering fully.
A second concrete step you can take to ensure the welfare of your family is to pull out your estate planning documents and take a close look to verify that they still reflect your wishes and are able to accomplish your goals. In doing so, start by taking stock of your estate: your assets, your responsibilities to/for others, and your legacy.
Do you have a current list of all your accounts, business dealings and important documents? The list should include bank and investment accounts, titles to vehicles and homes, credit card accounts or loans, digital accounts that might not be obvious and passwords, Social Security cards, passports, and birth certificates, which may be needed to manage your property if you become ill, or to settle your estate if you pass away.
Do you have a list of legal, financial, and medical professionals who have performed or are still performing services for you, and if you do, is this list up to date? The list should include their contact information so your family can easily reach them in the event their help is needed if you become ill or pass away. In addition, ensure HIPAA authorizations are in place with medical professionals to ensure your family members are able to obtain needed information.
Do you have a list of people who count on you or to whom you are somehow obligated? This might start with the obvious list of minor children, but might expand to children in college or just beyond, spouse, life partner, parents, other relatives who rely on you for support of some kind, co-tenants, landlords, business partners, collaborators, boards, etc.
The Wall Street Journal has an excellent article for this initial organization (I warn you, it’s a cruddy title): Designing Your Death Dossier.
In compiling these lists, ask yourself: what does someone need to know in order to manage these assets and support my obligations if I were caught under something heavy for three months? It might help you to write down quick instructions or an outline. You might need to have a conversation with your spouse or partner in order to more fully understand what needs to happen.
With this initial step having been accomplished, it now makes sense to review your documents (if you have them). Your documents confer authority and provide restrictions for someone to act on your behalf. As you review your documents, ask yourself a few important questions:
Would your Last Will and Testament and/or revocable living trust still achieve your goals? If your Will is your primary legacy vehicle, does it specify how you want your money and property distributed to the beneficiaries you have chosen? In addition, if you have children, you probably named a guardian in your will to care for them if you cannot, and perhaps you even specified a caretaker for your pet. If a revocable trust is your primary management/legacy vehicle, you likely named a trusted person to be your co-trustee or successor trustee to step in to manage the money and property held in the trust even during your lifetime if you are unable to do it yourself. In addition, you specified how the money and property in the trust should be distributed to beneficiaries you have named in the trust document once you pass away.
Life is constantly changing, so it is important to review the people you have named as beneficiaries and also to consider whether the people you named to act as your executor or trustee are still your top choices. Even if you are still comfortable with your previous choices, are the individuals you selected currently available to act in those roles? Is the person you chose to be the guardian of your children still available and willing to care for them? If several years have passed since you drafted your documents, your executor or trustee may have moved away or may otherwise be unwilling or unable to serve. In the current crisis, the person you have selected may be unavailable due to illness, quarantine, or a stay-at-home order, and if he or she lives out of state, may be subject to travel restrictions.
Are you still comfortable with the people you have named to be your agents under your advance health care directive? In your advance health care directive, you named a person you trust to make medical decisions for you if you are too ill or unable to speak for yourself. Does your advance health care directive still accurately reflect your wishes, for example, whether you would like to receive life support if you are in a persistent vegetative state or have a terminal condition? Make sure family members have a copy of it or know where it can easily be found to ensure that they will not have to guess about what you would want if you become very ill and are unable to communicate your wishes.
In your durable financial power of attorney, you designated an individual to make financial and property decisions for you should you become unable to manage your own affairs. As mentioned above, because of the prevalence of stay-at-home orders, travel restrictions, and self-quarantines, make sure the person you have chosen is currently available to act as your agent. Consider designating individuals you trust but who also live close by to act in these roles. [Consider also if you have young adult children who might need medical and financial powers of attorney.]
Do you need to modify or update the beneficiary designations of your financial accounts, retirement accounts and insurance policies? If you have already named beneficiaries, now is the time to make any changes that are necessary to reflect your current wishes. If you don’t remember, check!
If you have these documents in place, you are well prepared! If your estate plan needs updating or if you don’t have an estate plan, this is something you can do today to prepare for the future. My office has been a virtual law office for years. We have procedures in place that safeguard your health during the current health crisis and are happy to meet with you over the phone or via a videoconference. Our primary goal is to help you have peace of mind about the future—regardless of the circumstances. Eventually, this crisis will be over, but right now, we want you to know that we are still here for you: Please give us a call to take action to ensure the best plan is in place to provide for your care and for your family.