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Tue, May 5, 2020| | Articles

Estate Planning During a Pandemic

Estate Planning During a Pandemic

By working together, our community, our nation, and our world will make it through the COVID-19 pandemic.  However, the devastation caused by the Coronavirus has forced us to face many difficult realities.  We can choose to be proactive instead of spending our precious time worrying about the unknown.

The following are ideas for practical legal efforts that may provide peace of mind during these challenging times, along with some basic information about Estate Planning in Florida:
 

Health Care Providers and First Responders:

The manner in which this crisis has unfolded has resulted in extreme stress on our health care systems and emergency personnel.  Due to their level of exposure, many health care providers and first responders are highly susceptible to contracting COVID-19.  It is vitally important that all people have emergency surrogacy documents (“advance directives”) in place, but it is even more important for those on the front lines. 

In Florida, emergency surrogacy documents typically include the following:

  1. (General) Durable Powers of Attorney for financial and personal decision-making during your incapacity (your designated decision-maker is called an “Agent” or “Attorney-in-Fact”).  This document may include a pre-need designation for a legal guardian of your property (or this may be done via separate document);
  2. Designations of Health Care Surrogates for health care-related decision-making during your incapacity (your designated decision-maker is called a “Health Care Surrogate”).  This document may include a pre-need designation for a legal guardian of your person (or this may be done via separate document); and
  3. Living Will declarations memorializing the providing, withholding, or withdrawal of life-prolonging procedures if you have a terminal or end-stage condition, or are in a persistent vegetative state.  If you have a Living Will declaration, and you are incapacitated, your Health Care Surrogate will carry out your wishes as expressed within the Living Will.

If you do not have a legally valid Designation of Health Care Surrogate, the Florida Statutes will control the individual selected to act for you.  Generally speaking, the order of priority is: (1) your spouse; (2) your adult child (or a majority of adult children who are reasonably available); (3) your parent; (4) an adult sibling (or a majority of adult siblings who are reasonably available); (5) an adult relative who has exhibited special care and concern for you; (6) a close friend; or (7) a clinical social worker who is a graduate of a court-approved guardianship program.  Examples of the importance of legally designating your own preferred Health Care Surrogate (rather than letting the statutory default apply) include unmarried couples who want their partner to have the ability to make their health care-related decisions, and situations in which you absolutely would NOT want one of the default decision-makers to be in charge.

If you do not have a legally valid Durable Power of Attorney, a court-appointed guardian will be required for the management of your financial affairs during incapacity (temporary or otherwise).  The Guardianship process can be costly and lengthy and can be avoided by executing legally valid advance directives.  However, it may be helpful to know that Guardianship courts are still operating at this time.

Advance directives executed outside of Florida are valid in Florida, provided they were validly executed in the prior jurisdiction.  As a result, if you have existing emergency surrogacy documents from another state, they are likely better than the statutory default, and you should make sure your loved ones have copies.  Be careful: other states may refer to these documents by other names such as “medical durable power of attorney” or “health care proxy” (instead of Designation of Health Care Surrogate). 

Provisions of the Florida Statutes also provide a mechanism for parents to designate a surrogate health care decision-maker for their minor child, in the event of the parent’s incapacity.  Provisions can also be made within a Durable Power of Attorney for the parent that allow use of the parent’s financial resources by the designated Agent to provide for the incapacitated parent’s minor child.

There are statutory forms available for the Designation of Health Care Surrogate and Living Will.  The statutory forms contain limited features (for example, they do not easily provide for situations other than successive individual Health Care Surrogates), and may have some confusing provisions (such as the option to allow the Designation of Health Care Surrogate to be immediately effective and/or to allow access to your protected health information immediately).  If you have questions about completion of the statutory forms, please contact us to ensure you are accurately memorializing your wishes.

Everyone:

It may seem like everywhere you go, someone (a banker, a financial advisor, a television personality, your spouse!) is imploring you to “make sure you have a Will…in case something happens to you.”  Their concern is valid, and highlights the importance of Estate Planning for everyone, regardless of marital status, age, health, or net worth.  If you do not have any Estate Planning documents, this is a great time to put your plan together.  A Will is a “testamentary” document, which provides for the distribution of your property upon your death.  A complete estate plan will include testamentary documents and advance directives, and may also include features which provide for:

  1. Management of your personal affairs during illness or incapacity;
  2. Protection for spouses, minors, and disabled persons;
  3. Reduction of potential tax liability;
  4. Safeguards for beneficiaries with creditors or who have substance-abuse issues;
  5. Minimization of court involvement and protection of your family’s privacy; and
  6. Reduction or elimination of familial conflict upon your death.

Although it is true that most Estate Planning attorneys have the same legal “tools” available to help their clients, in order for your estate plan to best meet your needs, each of the aforementioned features should be customized based on your individual values and goals – which should be discussed in great detail with your attorney, along with your individual familial and financial circumstances. 

For instance, everyone should have a Designation of Health Care Surrogate – but people with specific wishes about the method and manner of their care during a long-term illness or end-of-life medical treatment scenario may supplement their Designation of Health Care Surrogate with an individually crafted Personal Care Plan, which provides specific instructions to their designated decision-maker. 

Similarly, everyone should also have a Durable Power of Attorney so they can select the individual they trust to handle their personal and financial affairs during incapacity, but not all Durable Powers of Attorney will confer the same kinds of powers upon the named Agent.

Another important thing to keep in mind, is that the way your assets are titled matters a great deal with respect to the efficacy of your plan.  A Will provides your instructions for the distribution of property at death but requires a probate administration through the courts to carry out your instructions (which can be expensive and extend the time it takes for your beneficiaries to receive your property).  A Trust can help avoid the need for a probate administration (but only if the ownership of your assets is properly transferred into the name of the Trust during your lifetime (or immediately upon your death by valid beneficiary designation)).  Further, joint ownership of assets and beneficiary designations will “trump” the instructions in your Will or Trust.  As a result, periodic review of your assets is recommended to ensure your estate plan will be carried out as intended.

If you have an existing estate plan, now is an excellent time to review your documents to ensure that your plan still makes sense for you and your family. 

Key Takeaways:

  • Estate Planning is more than distribution of property at death.  Everyone should have legally valid advance directives in place in case of their incapacity – especially those with dangerous professions.
  • Out-of-state documents are generally valid in Florida, but documents which deal with the distribution of your property at death may need to be revised to include special state-specific provisions (for example, Florida homestead provisions).
  • Parents can designate “pre-need” health care surrogates for their minor children and can provide for management of their finances for the benefit of their children during the parent’s incapacity through properly executed advance directives.
  • Statutory forms are better than nothing but have some limitations.
  • A Will means a probate, and joint ownership and beneficiary designations can “trump” your Will or Trust.

We hope this information is helpful and offers some practical tasks you can focus on that will offer peace of mind during these uncertain times.  If you have specific questions about the effectiveness of your existing plan, or if you would like to discuss putting a plan in place for yourself or your family, please give us a call.  We continue to be fully operational and available to our clients and have protocols in place to allow for appropriate social distancing during in-office signings.  We will also be able to assist with electronic execution of Estate Planning documents as soon as allowable under state law (currently slated for an effective date of July 1, 2020).