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Estate Planning During a Pandemic - Part II

My last blog post, written in late February, was trying to be optimistic about coronavirus not going pandemic, but now that hundreds of thousands of people in the United States alone have been infected and thousands have already died, with more to come, this blog post will be written with the reality of the death count rising exponentially in the United States and what you should consider now as part of your Florida estate plan. Remember, estate planning is preparing for your death and for your incapacity.

First, the facts regarding the coronavirus as I see them on this April 2, 2020:

  • the morbidity rate in the United States seems to be 2-2.5% of those infected, higher than some originally thought
  • a conservative estimate may be that over 200,000 people may die in the United States alone, but experts are questioning that this may not be anywhere close to accurate
  • healthy people without any preexisting conditions can die or end up in the hospital on a ventilator 
  • many people have been looking to do their estate plans to prepare for their death
  • coronavirus seems to be easily spread, even going through the air, not just through skin contact
  • all of Florida just went on a statewide lockdown, although law firms are allowed to stay open as part of essential services (note: we have a tent outside to meet with clients for will signings and all other client meetings are otherwise set up through the phone only, among other steps we have taken for our own safety and the safety of our clients)

With these facts, these are the following matters I would consider, once again, as an estate planning and elder law attorney:

  1. Prepare, Prepare, Prepare: NOW is the time to create your estate plan. Set a phone conference with a good estate planning attorney to discuss your estate plan.  Pull out your own estate planning documents to review them. Can you even find them? Do your children/heirs even know where they are? Do you have the originals or just the copies? Do your children have access to your safe deposit box?
  2. Witnessing is essential to estate planning documents: One of the important part of estate planning with an attorney is not just good wording/drafting with the documents.  That part should be a given. But a good attorney makes sure your documents are signed/executed correctly, which is usually done in the presence of two witnesses. We see documents signed without attorney guidance all of the time and the signers frequently get it wrong, often creating invalid documents! This is one reason why you will now want to meet with a good attorney to get your estate planning documents done.
  3. Finding notaries is difficult: Along with getting documents signed correctly, most (but not all) estate planning documents are notarized. During a pandemic, finding a notary can be difficult, if not impossible. Thus, see matter #1.
  4. Is dying without a will all that bad?  Does everyone need a last will and testament? Read this blog post on dying intestate to help you decide. Of course, even if you do not need a last will and testament (most of you will), you would still need a durable power of attorney and your advance directives.
  5. You do not need an attorney to create your advance directives: We want the residents of Florida to have their advance directives - here is a link to download your free combined living will and designation of health care surrogate.
  6. But a good attorney should create your advance directives for you, anyway: But, most experienced estate planning and elder law attorneys separate out their living will and designation of health care surrogate.  If you use our law firm for your legal services, we separate living will and health care surrogate into separate documents. We do this for various reasons, but mostly because sometimes people need to change their surrogate decision maker but they may not want to (or be able to) understand the nuance of changes to their living will/end of life wishes. But a combined living will and health care surrogate is better than no documents at all (see #7).
  7. What if you become incapacitated without creating a health care surrogate? We know that COVID-19 can come in quickly and can incapacitate you with little warning. Media reports are widespread with people who are doing fairly well then have a sudden downturn in health with fever spike and difficulty in breathing, which may mean intubation and being placed on a ventilator. If this is the case, the patient may or may not be able to make medical decisions at this time.  If the patient has not created their advance directives (their living will and health care surrogate), then who would make their medical decisions at this time? Florida law would allow a health care proxy to then make the patient's medical decisions if the patient is unable to make informed medical decisions. You can learn more about health care proxies in Florida at this link, including a free download of this form from the Florida Department of Children and Families.
  8. Always do a Durable Power of Attorney: One of your most important documents is your durable power of attorney - who would make your legal and financial decisions if you could not make the decisions yourself?  This could be the most important document in your estate plan.
  9. Is your estate plan current? Here is a checklist for you to consider in reviewing your existing documents.
  10. I still would not rely upon on-line legal documentation: Please find a good estate planning attorney to do your estate planning. You need peace of mind knowing you have done a good job with your estate plan - do not rely upon on-line forms. As is everything in life - you get what you pay for!
  11. Living trust planning may be more important: I have always thought about how most people are living longer and healthier lives and that for most of us, death is not likely to take us with little to no warning. While the statistical odds of surviving COVID-19 are high, the morbidity rate substantially climbs for those over age 64, so your estate plan should now, even more so, consider setting up a revocable living trust to avoid probate upon your death.
  12. Once again, do not procrastinate: NOW is the time to plan - before you get sick. Make sure you and your family will be taken care of and do not try to scramble at the last minute!

We hope everyone reading this does well, stays safe, that the coronavirus moves on and does as little damage as possible and that a vaccine is developed as soon as possible. 

If you want to learn more about creating your own estate plan, please feel free to download my free book, The Top 20 Rules for Protecting Your Florida Estate. As ever, if you want help with your own estate plan, we are glad to help you in these difficult times.

 

 

 

D. Rep DeLoach III
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Estate Planning and Board Certified Elder Law Attorney
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