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Wills, Medical Directives, and Estate Planning During COVID-19

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There’s never a bad time to get your affairs in order, but estate planning is especially important during the Coronavirus pandemic. Estate Planning attorneys help clients understand the questions they should be asking themselves and/or discussing with loved ones to make end-of-life, retirement, and incapacity issues easier to address for everyone involved. Good estate planning lawyers look for ways to save money, time, and stress by preparing for uncertainty in life and in business. This article is an overview of how the COVID-19 outbreak affects estate planning in Texas by reviewing standard estate planning issues, the documents used to address estate planning concerns, and how to get the most out of a consultation with an estate planning attorney in Texas during the COVID outbreak.

Texas Estate Planning Issues

            Estate planning isn’t just about planning your affairs after death. Estate planning is also about giving direction to other people, such as doctors or probate courts, who may make decisions about you or your loved ones while they are still living. Good estate planning lawyers help clients predict their future needs so that they can make plans to handle concerns before they become problems, saving stress, time, and expense during life’s more difficult moments. Common issues in estate planning involve concerns about medical care, establishing preferences for who will be a person’s guardian if the person is incapacitated (temporarily or permanently), providing for children or spouses, and ensuring appropriate assignment of responsibility for financial affairs, child care, and legal matters. Some questions our San Antonio estate lawyers frequently address are:

  • How do I make sure my spouse/kids/significant other are cared for if I die?
  • How do I avoid taxes on my estate?
  • Can I leave my special needs child money without making him/her ineligible for disability benefits?
  • Is it possible to leave family members out of my will?
  • How do I make sure nobody steals my will?
  • How do I make sure that doctors will/will NOT resuscitate me if I die or become “brain dead?”
  • How do I choose who will look after me if I can’t manage my own affairs?
  • What can I do to make sure my kids stay with family if my spouse and I both die?
  • Can my father/mother/spouse make a will if they are having mental health concerns? Can a person with dementia make a will?

Texas Estate Planning Solutions

            In Texas, certain standard documents are used to help people answer those estate planning questions. Where your concerns are common, estate planning may be relatively straightforward. Others need much more customized planning that will require consultation with other professions such as CPAs, trust officers, mental health professionals, and health care providers. Typically, the following documents can solve most estate planning issues:

  • Power of Attorney (“POA”): a POA gives another person some of your authority to conduct certain affairs, such as bank transfers, bill payments, property maintenance, management of retire accounts, sales of real estate, etc. When you give another person a POA, you select which powers that person can exercise, how long the POA is in effect, under what circumstances the POA remains effective, and whatever other limits are appropriate. For example, you could give someone a POA that only allows them to care for your pets while you are on vacation or you could obtain a Power of Attorney to pay bills for a person who is incarcerated. POAs are used while people are still alive and mentally capable of handling their affairs, but it is more convenient for someone else to take care of things.
  • Durable Power of Attorney: A durable POA is like a regular Power of Attorney, but it grants authority to act on behalf of the person who signs it even when that person becomes incapacitated. Incapacity could be medical, such as during a hospital stay, or permanent, such as for someone with advanced dementia.
  • Medical Power of Attorney: A medical POA specifically authorizes someone to make medical decisions for the person who gave them the Medical POA. Most health care providers will not follow the decisions of a person with a non-medical POA. Instead, without the clear guidance provided by a Medical Power of Attorney, doctors and hospitals will consult the next-of-kin or their own policies. So, if you are concerned about who will make medical decisions for you in an emergency or as a result of long term incapacity, you should consider a Medical POA.
  • Designation of Guardianship If Need Arises: This document gives guidance to courts and other entities or persons about who you would like to be made your guardian, if you need a guardian. Parents often want to designate a guardian for their children, in case something happens to them, such as a car accident that kills both parents. Often, spouses or caregivers, are concerned about who will look after an incapacity or disabled person for whom they are responsible. A Designation of Guardianship If Need Arises can help address all these issues.
  • Do Not Resuscitate (“DNR”) or No Heroic Measures Directive: A DNR directs medical personnel NOT to use “heroic measures” to save a critically ill person and/or NOT to leave someone on life support when there is no significant medical likelihood of recovery. Many people prefer a DNR to a Medical POA because it is more specific and because it takes the burden of decision making away from family or friends who may struggle with making such a difficult decision.
  • Last Will and Testament (“Will”): Wills are the most common estate planning documents, in most people’s minds. A will is a set of instructions for how to divide your estate. Without a Will, a person’s estate (all of their assets and debts) is handled by the default provisions of the Texas Probate Code. A Self-Proving Will simplifies the probate (court procedures for handling a deceased person’s estate) process, making it faster and less expensive in the vast majority of cases. A Will is also important to alleviate the burden of deciding how to handle a person’s estate that otherwise may fall on grieving loved ones. Wills vary in complexity and you should consult an estate planning attorney before drafting your own will.

Consulting Estate Planning Attorneys

      Texas is blessed with plenty of good estate planning attorneys. Most law firms offer estate planning packages that provide all of the relevant documents for the average estate for a preset, “flat” fee. More complicated estates, such as those involving partnerships, other business entities, oil, gas, or mineral leases, or large estates, may need to be handled on an hourly fee basis. So, the first step is to set up a consultation with a local attorney to determine what you’ll need. Be sure to inquire about pricing and payment plans.

      When you meet your local estate planning attorney, be sure to get the most out of that meeting by being prepared. The best estate planning attorneys tend to charge consultation fees, so you want to get your money’s worth. One way to prepare is by filling out this Estate Planning Worksheet. You should be prepared to answer some of the following questions, too:

  • Who do you want to be in charge of handling your estate when you pass away? Do you have a second or third option?
  • Do you have estate planning documents, such as a will, already? Where are those documents? (Hint: bring them with you).
  • Which documents do you want created or updated?
  • Are you presently responsible for another person, such as children or disabled persons?
  • Do you intend to leave anything to assist in caring for someone who receives state or federal benefits? (if so, try to bring documentation and identifying information such as full name, date of birth, Texas Driver’s License or ID number, and last four digits of their SSN).
  • Are you being sued or likely to be sued?
  • Do you owe child support, have judgments against you, or have other debts?

Additionally, estate planning and probate lawyers will need a variety of documents. Make sure you bring a government issued photo ID to every meeting. You will save time (and money, if the estate attorney is billing hourly) by providing property descriptions for all real estate, vehicle titles, a list of all bank and financial accounts (including account numbers), and marriage certificates or divorce decrees.

COVID-19 Estate Planning Concerns

            As a result of the COVID-19 / Coronavirus pandemic, there are a number of concerns for estate planning and probate lawyers (the court process for handling estates of deceased persons and guardianships). First, San Antonio Probate Courts, and probate courts everywhere, have restricted their activity. Second, estate planning lawyers expect to see a large number of new cases coming as the deaths from COVID increase, some COVID survivors face issues of incapacity, and fewer people are seeking estate planning services because of “stay at home” orders. Estate planning and probate law firms typically see a steady flow of traffic, as do probate courts. So, this community is not prepared for a flood of new cases. Unfortunately, between the courts having reduced capacity, more people passing away, and fewer people having done the estate planning needed to streamline the probate process, there is a real possibility that our probate courts will be overwhelmed. Estate planning is critical during the Coronavirus outbreak because good estate planning attorneys look for ways to avoid court and have assets transfer quickly and easily.

            Other concerns include access to financial, medical, legal, other records. Many businesses, including law offices, are shut down or on reduced duty. Estate planners expect delays in preparing paperwork because they will experience delays in obtaining paperwork. Fortunately, estate planning lawyers can retain important paperwork after completing or updating your planning. This will avoid delays preparing for court, if it is necessary.

            Medical directives and desires are an increasing concern, as well. Due to COVID, many hospitals have implemented “Do Not Resuscitate” policies, where patients are denied heroic measures to prolong their life in order to make space for patients who are more likely to survive. Other hospitals are triaging patients, meaning that they assign resources at intake based on which patients are more likely to recover. Additionally, estate lawyers are concerned about reports that many survivors have lingering health issues that could cause them to become incapacitated. Estate planning lawyers can help address these issues by helping prepare for guardianships, empowering legal representatives who can advocate for sick loved ones, or by taking the burden of medical decisions away from next of kin. This type of planning doesn’t require court, but litigation is expected as disagreements about critical health care increase.

            All of these issues are best handled by careful estate planning and preparation. The good news is that estate planning can be easily accomplished remotely, by phone, email, and video. Certain documents require witnesses and a notary at the time of signing, but most can be executed without having to leave your home. When personal contact is required, COVID precautions can reduce any risk. Estate planning law firms are not high traffic areas and most have already set up for efficient execution of complex documents, minimizing the time and contact required.

San Antonio Estate Planning Lawyers Are Available to Help     

        The San Antonino estate planning attorneys at Hoelscher Gebbia Cepeda PLLC have experience in estate planning and probate law. We work with appropriate professionals in other fields to obtain guidance on tax planning and asset protection in many cases. Our office has established appropriate COVID precautions, based upon CDC guidance, including sanitation, limits on clients, remote consultations, and special document signing procedures to minimize or eliminate the need for clients to break quarantine. So, if you need assistance with estate planning in San Antonio, Texas, feel free to contact us for a consultation today.