Estate and Elder Law Challenges in the Era of COVID-19: What You Need to Know

Estate and Elder Law Challenges in the Era of COVID-19: What You Need to KnowAs a lawyer who has been practicing Elder Law and Estate Planning for nearly 25 years, the COVID-19 pandemic has presented unexpected legal challenges for seniors and families. I have received calls from many of people who have had family members admitted to the hospital and are now facing legal issues when it comes to authorizing essential documents and making healthcare decisions on behalf of their loved one.

Because of hospital visitation restrictions during COVID-19, I’ve received many questions like these: How does someone else pay your bills when you are not allowed visitors in the hospital? How can you sign checks to pay the mortgage when you don’t have your check book? Who can manage your health care decisions? How can you tell your family, who cannot visit you, about your last wishes?

Although these problems may seem new and complicated, there are easy solutions that can be implemented to solve them. All you need for appropriate advanced planning is the creation of some basic estate planning documents. Surprisingly, many of these documents are easy to obtain at little to no cost:

Health Care Directive. The first, and in my opinion, the most important document is a Health Care Directive, also known as a Health Care Power of Attorney. This document authorizes someone else to manage your health care decisions in the event that you are unable to do so. In short, this is the document that would allow your spouse or other loved ones to interact with your doctors to make your medical decisions. Surprisingly, even though this directive is provided for free by health care providers, many people still don’t have it. Some seniors do not fill out this form because they do not understand its importance or wrongly assume that their family will automatically be allowed to take control. Unfortunately, neither of these assumptions are correct, and often this mistake is not discovered until it is too late.

Durable Power of Attorney. Similarly, you should also have a Durable Power of Attorney for finances. This document authorizes someone else to pay your bills and manage your finances. Without this document, no one is authorized to have access to your bank account. In short, this means that no one can write checks to pay your bills. Obviously, this can be a really big problem.

HIPAA waiver, Wills, and Revocable Trusts. These documents are equally important in working to solve other legal estate planning and control issues.

Of course, these documents are very personal, and any decisions you make about who should be authorized to act in these capacities should be made with great care and only after thoughtful consideration.

Similarly, the powers you give to an appointed person should also be carefully reviewed as they – your agent – will have access to your personal information. Because this decision is so important, you should have your estate planning documents reviewed regularly to make sure they are consistent with your wishes and reflect any changes that may have occurred.

The most difficult problems we face at our office is when clients either misplace or don’t have these essential legal documents. These important documents can only be created by the person themselves and not by a family member on their behalf. So, unfortunately, when children call me and tell me that dad is in the ICU and they need to get a Power of Attorney for him to pay his mortgage, I still need approval from their dad. Fortunately, this can be done over a Zoom conference call where he can give his authorization and approval. However, a mobile notary will still have to go out and meet with the client in person to get a signature. Currently, getting documents signed is the most difficult part of the process as frequently no one is allowed into the hospital to see the patient. This leaves us in the situation where even though everyone knows what should happen, due to the failure to plan, we are left with no solutions other than going to court.

If you do not have these basic documents signed and in place prior to an emergency, it’s possible your family will have to go to probate court for a conservatorship to gain control over the finances and/or medical decisions. This process is often very expensive, confusing, and time consuming.

Families are much better off if they plan ahead before a crisis hits in order to avoid this complicated process. If you have questions and concerns, seek out the help of an Estate and Elder law attorney to guide you through this process.

About the Author

Richard Scott Stewart. Esq. has concentrated his law practice on solving the legal problems affecting the California senior population. These problems include Medi-Cal benefit law, estate planning and asset protection and retention.

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