Guest Post by Shannon P. McNulty, Esq.
As the COVID-19 crisis drags on, you may be concerned about having a solid plan in place if something were to happen to you. Below are some of the common estate planning issues that are arising during this pandemic which may be relevant to you.
As the often-theoretical discussions about life support and respirators become ever too real, an up-to-date healthcare proxy is perhaps the single most important document to have in place during this time.
It is also important to review and healthcare proxies that they have previously executed. Many of these documents direct that artificial respiration or intubation not be used to prolong an individual’s life. As artificial ventilation is a critical treatment protocol for patients who fall severely ill with COVID-19, and many of these patients fully recover. Individuals should review whether their living wills or healthcare proxies would prevent them from receiving lifesaving measures that could be vital to their survival.
Powers of Attorney
Patients hospitalized for COVID-19 may become unconscious or may be sedated during ventilation. It is important during this time for a trusted person to be able to manage the patient’s finances and sign legal documents. In the absence of a power of attorney, important family and household expenses may not be able to be paid.
Wills and Trusts
While the mortality rate for most people from this virus is low, it is not insignificant, particularly for older clients and those with underlying health conditions. Faced with this information, clients who have put off their estate planning may wish to put a will and/or trust in place now so that they have one less thing to worry about if they do become ill.
Status of Courts and Probate Delays
The crisis is exposing the downside of will-based planning at this time. The New York courts have been closed for over a month for non-essential matters, essentially freezing all pending probate or administration matters unless emergency circumstances can be demonstrated. New matters are likely to be delayed several more months at a minimum. When the courts do start operating under a “new normal,” they are likely to be severely backlogged, potentially resulting in even further delays.
Revocable living trusts are becoming a more popular option because the distribution of trust assets is not dependent on action by the courts. This allows assets to be accessed by heirs quickly and often at a lower cost.
Guardianship for Minor Children
Parents with minor children should make sure that they have a plan in place in case the parents get sick and require hospitalization. It can be challenging to find someone who would take on this role when children have been exposed to the virus and grandparents may be vulnerable. As more people recover from the illness, it’s a good idea to seek those individuals out to help with these kinds of tasks.
Those whose close family members live overseas should be particularly vigilant about their planning at this time. While this is true generally, it is particularly true at a time when travel restrictions abound. Family members may not be able to fly in from overseas to take care of a minor child if needed. Probate involving international individuals is fraught in ordinary circumstances, and much more so when courts are backlogged. These clients are advised to have a comprehensive plan that avoids probate and includes U.S.-based individuals who can serve as alternates for key roles if necessary.
Accessing Attorney Services During the Crisis
Most law practices (including this one) are operating remotely during this time. Thanks to modern technology, most meetings with lawyers can be held virtually. Previously, the execution of wills and other documents had to be done in person before a notary. Due to the current crisis, Governor Cuomo has authorized documents to be witnessed and notarized utilizing videoconferencing, which allows for estate planning documents to be completed remotely.
The current executive orders allowing for remote witnessing and notarization provisions are only temporary and must be reauthorized every 30 days. We expect a longer-term fix to be enacted by the legislature in the near future.
If I can be of assistance, please feel free to reach out.
Shannon P. McNulty, J.D., LL.M. (Taxation), CFP®
Law Offices of Shannon P. McNulty
New York, NY 10020
The opinions and services of Shannon McNulty are not affiliated with Cultivating Wealth.
The information provided in this article is for informational purposes only, and should not be construed as legal advice. Neither this article, nor any responses to it create an attorney-client relationship.