Having an up-to-date estate plan in place is always important. Not only a will, but durable (banking, insurance, etc.,) and medical powers of attorney are essential – as are medical directives (often called “living wills) for health care providers.
In my practice, since COVID, I have seen an increasing number of people planning ahead for their inevitable demise or incapacity, but also many who end up scrambling at virtually the last minute to at least have a will in place. Thankfully, there is now more than one vaccine available to protect against COVID-19 and also an increasing number of effective therapeutics to help those afflicted, but the danger today remains and over 400,000 American have passed as a result of the disease.
Changes in the delivery of healthcare since COVID and social distancing can cause problems for people in need of estate planning because of a seriously ill family member. In the recent past lawyers, myself included, often met with seriously ill clients in the hospital and would draft wills and other estate planning documents there, but in recent times, COVID protocols prohibit visitors with very few exceptions, thus impacting the ability of all hospitalized people to access legal services for estate planning purposes.
On several occasions in recent months, I have been contacted by people or their families, in many cases in their forties or fifties and one notably who was only 36, who have been struck by COVID and who were unprepared, without a will or powers of attorney. The 36-year-old’s wife called about a will for her husband who was very ill as a result of COVID complications, but unfortunately her husband by then lacked the capacity to understand my questions about his wishes as well as others that would indicate he had a clear understanding of what was going on. Lawyers have an ethical responsibility to make certain, to the best of their ability, that the Testator (the person making the will) is of sound mind such that he or she understands the implications of a will and is able to make clear-headed decisions regarding the disposition of his or her property and wishes regarding minor children. Additionally, the tragedy of the death of a parent can be magnified when they pass without a will and have young children; as they then may not have a say as to who will become their children’s guardian.
When someone is seriously ill and no longer has the capacity to make their own medical decisions, medical providers must turn to their closest kin for guidance. Without a medical power of attorney, with which the patient can name someone, (an agent) of his or her choice to make medical decision while they are unable to do so, disagreements and arguments amongst family members about the best course of action can lead not only hurt feelings at a time when emotions are already likely running very high, but also delays in treatment.
I write the above words not to alarm, but to remind that we are all mortal and that despite current good health and youth, it pays to be prepared. Not only for one’s self, but for the protection of one’s family and for the peace of mind that comes from careful planning.
Steve Buitron, Esq.