Elder Law: How well is your estate plan prepared for the pandemic?


Estate planning documents (wills, trusts, financial and medical powers of attorney, and advance directives) should be reviewed every few years or when changes in family, medical or financial circumstances occur. Due to the current COVID-19 pandemic, it is more important than ever to be certain that you have these critical documents in place. Even if your documents are newly drafted, it is important to review them to make sure they function as you wish should you suffer ill effects from this virus.

There are key provisions that you should look for in your documents.

Many clients are concerned about how their advance directive, also known as a living will or physician’s directive, works in times like these. Recall that living wills are effective when you are unable to make an end of life decision for yourself, when you are either terminally ill or have an irreversible condition which will end in death, and you need life support. It is important to review your living will to see how intubation would be treated should the living will go into effect. Many patients with COVID-19 have to be intubated to recover. Some clients are adamant that intubation never takes place; other clients want to make sure that they can be intubated even with their living will in place. In either scenario it is worthy to review your decisions.

One should also make sure their medical power of attorney and HIPAA medical authorization are up to date. The agents chosen should be ones that are readily available and capable to make an informed and wise decision for you. While you are in the hospital, it is likely that your agent will not be permitted to visit you or your medical provider in person, so they will need to be able to handle decisions for you by virtual means. The HIPAA medical authorization will allow the individuals you name to easily communicate with your medical providers and receive updates regarding your care.

The financial power of attorney is one of the most important documents to have in place in these uncertain times. It is important to have an agent in place who can transact business for you if you fall ill, or if you are quarantined at home or in a high risk group who needs to avoid the public. It is important to review your power of attorney to see if it is effective immediately or if it is springing, meaning it springs into effect only upon your incapacity. A springing power of attorney requires a physician to declare in writing that you are unable to handle your financial affairs. Perhaps this impediment should be considered to be lifted during the pandemic so your agent can handle your affairs while you have capacity but are unable to freely move about the community.

Perhaps you are reticent about meeting with an attorney due to health and safety reasons. Most estate planning work can be handled while you are at home. You can meet with your attorney telephonically or via video conference to discuss creating or updating your estate plan. Drafts of documents can be sent to you via email or trackable delivery service for review.

There are also many options for executing your estate planning documents. You should be able to meet in the attorney’s office with proper personal protection equipment (masks, gloves, shields) for the document signing. Some law firms are also offering parking lot signings so that you may maintain appropriate social distance while remaining in the safety of your vehicle.

Making the time to review your estate plan to be sure that it is ready to be put into action is an important task during the pandemic. Acting now will alleviate worrying later. Seeking the advice of a credentialed estate planning attorney is key. There are a lot of do-it-yourself projects that you can undertake while you have time on your hands, estate planning should not be one of them.

Wesley E. Wright and Molly Dear Abshire are attorneys with the firm Wright Abshire, Attorneys, P.C., with offices in Bellaire, the Woodlands, and Carmine. Both Wright and Abshire are Board Certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and are certified as Elder Law Attorneys by the National Elder Law Foundation. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case, but should be considered general information.



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