The rapidly spreading coronavirus has the entire world on edge and it should. The devastation from this disease is unfortunately escalating every day. With the large number of people who have
already contracted the disease coupled with the sharply rising number of new cases and the mounting death toll, this pandemic is something for everyone to take very seriously. The coronavirus is indeed an unprecedented health risk.
Realizing the health consequences associated with Covid-19, people are now taking strong precautions to mitigate their exposure. This is a smart decision. Immediately implementing safeguards will undoubtedly save lives and result in far fewer people contracting the disease in the first place.
That being said, there is another risk directly connected with contracting Covid-19, and that risk is dealing with the legal consequences of becoming seriously sick. Families need to take the legal risk just as seriously as the health risk and immediately act to properly plan for their family’s well-being. I say this because Covid-19 is not waiting for anyone and therefore, families can’t wait either.
Everyone is very concerned, if not downright afraid, that they or a family member will become infected and the unknown consequences that they might face. Will the person just have a mild case and get well in a couple of weeks, or will it develop into a serious illness resulting in separation, quarantine, pneumonia, incapacity or even death?
Once the person tests positive for Covid-19, the legal ramifications begin to enter the picture and they too range from mild to severe. Some of the questions that might arise are:
Will the person need assistance with their health care?
If so, who will provide it and how will it be paid?
Who will make medical decisions if the person can’t make them?
Has the person signed a HIPAA release allowing doctors and hospital personnel to talk freely with designated persons (which may or may not include family members)?
Who will make financial decisions, sign tax returns, deal with retirement accounts and pay bills for the person?
What are the desires of the person for the administration of nutrition and hydration during a time of incapacity?
What are the desires of the person for life support and end of life?
Who will take care of any minor children?
Does the person want to be buried or cremated and how is this going to be paid?
Does the person have a will or trust appointing someone to administer their estate and the disposition of assets?
Will there be a probate of the estate?
These questions are just a sample of some of the issues that every family needs to consider and then develop a legal plan tailored to their own situation. With proper legal documents executed, their desires will be legally implemented. As I tell my clients, “we want your voice to be heard when you can’t speak.” The only way to accomplish this is through a proper estate plan covering crucial issues and legally expressing a person’s intentions and directions. That plan may include a revocable trust, pourover will, durable power of attorney for finances, health care directive, HIPAA release document, and other relevant documents. Such documents can keep a person’s life and their estate private, appoint trusted persons to serve in fiduciary roles if necessary, and avoid a court probate or conservatorship.
If there is no plan and no legal documents, then by default these questions are forced to be answered through the court system which is time consuming and expensive. The courts are also filled with people. At this time of social distancing and a tanked stock market, being forced into public courtrooms and spending money on large legal bills is not the thing to be doing. Yet, many people will wind up in exactly this position because they failed to take appropriate legal action now to avoid these dire consequences.
At the moment of this writing most courts are closed so access to a judge will likely be delayed for weeks or months. This may be too late for many people. Therefore, it is incumbent for families to take the opportunity to plan into their own hands and make the law their friend and not their foe. And do it now. Covid-19 is not waiting on anyone and you can’t wait either.
Another very important note to remember. The need for an immediate plan applies to everyone age 18 and older. Once a person reaches age 18, the law deems the person to be an “adult” where the person stands on their own and the parents no longer have any legal power over their adult child. Thus, parents of a 20 year old daughter have no standing to make medical decisions on their daughter’s behalf because she is an “adult”. Moreover, her doctors may legally refuse to discuss any aspects of their daughter’s health issues pursuant to HIPAA laws. She must have her own separate documents to legally protect herself in case something were to happen. In this surreal time of young adults being just as “at risk” to contract Covid-19 as older people, the need for every adult to make a plan is vital. With a proper legal plan in hand, both the adult child, as well as mom and dad, should gain peace of mind.
As a final note, I have been practicing estate planning and estate administration law for nearly 40 years. Never in my lifetime have I witnessed a health crisis of this magnitude with California in lock down. Last night I thought of how loved ones who contract the disease and their family members are going to be impacted legally by the coronavirus. I want the best outcomes for everyone and I hope this will assist in some way.