Estate Planning

In short, it’s time to think more about Powers of Attorney and Advance Health-Care Directives.

In my estate planning practice, I’m often helping clients prepare Wills, Trusts, Powers of Attorney, and Advance Health-Care Directives, though most of the conversation focuses on the Will or Trust. Clients want to make clear who gets what after their death and want my help in making sure that happens in the easiest way possible. 

Clients are surprised when I tell them that we should also plan for incapacity. Incapacity planning involves deciding who can help you with your financial life and medical decisions when you can’t handle these things independently anymore. This is usually in the context of dementia or other disabling, chronic illness.

These days, however, with stay at home orders, social distancing, and potentially life-threatening illness, I am thinking about the concept of “incapacity” and the use of Powers of Attorney and Advance Health-Care Directives in a totally new way.

You may not be “incapacitated” according to the legal definition, but if you are elderly or immunocompromised, you really can’t conduct your day-to-day living, like banking and grocery shopping, without help like you did before this crisis. And even if you do not fall into one of these at risk categories, chances are you’re already living like you do. Would it be helpful to know that someone has legal authority to help with your personal and business transactions right now?

Even if you have ways to manage life at the moment, what happens if you do get sick and are hospitalized for a period of time? How can you be sure someone has legally effective authority to take care of your needs?

Having a Durable Financial Power of Attorney allows you to appoint someone to act on your behalf in a variety of ways. Your agent can handle your banking, your mail, your retiremement benefits, your taxes, and take care of your pets, to name a few ways this document can work. You can decide who to name, what powers to delegate, and when those powers will be effective. And this can all be done privately without court involvement (which is the route you will have to go if you don’t have a Power of Attorney, but need someone to have authority to act for you.)

And what about medical decision making? If you are hospitalized with Covid-19 and unable to make medical decisions for yourself, who will make those decisions for you and does that person know how to make decisions that fit you values and beliefs? 

In an Advance Health-Care Directive, you choose your health care agent and provide direction on the kind of care you want. If you don’t have an AHCD, Maine law authorizes certain people to make these decisions for you, but it may not be the person you would choose for yourself.

Of course, having these incapacity tools does not mean that you have to use them.  But, given these uncertain times, having them may give you peace of mind for taking control over decisions that are yours to make. And it’s never been easier to get this done because I’m holding meetings by phone or video.

Working with an experienced lawyer ensures that these tools are properly drafted and executed. I worry that many people may complete online documents during this time and not understand what they have created or that state law requires different signing formalities for different documents. 

Interested to learn more? Let’s set up a free phone initial consultation and find out if I am the right fit to help. Email me at lauren@weliverlaw.com today.