Three estate planning lessons we can learn from the pandemic

The Legal Point

Life is full of surprises. This is something that the pandemic drove home for all of us. It’s crazy to think about how fast our lives changed. Remember February 2020? Kids were in school. Employees commuted to the office every day. We were all living in blissful ignorance to the fact that our lives were about to flip upside down by what was lurking right around the corner. 

One lesson we all learned quickly was that each and every one of us is susceptible to an illness. Even for relatively young people and families who appear to be in good health, it is critical to have a will and other estate planning documents in place. With the recent ending of the Public Health Emergency, it is worth reflecting on the important planning takeaways the pandemic underscored.

We should have a plan in place, no matter our age, and we should do it right now.

More than 4,500 people under the age of 50 died from COVID. Unfortunately, people in this age group are less likely than others to have an estate plan in place.

Many of us were reminded in recent years that illness of any kind is no respecter of persons. Diseases, conditions and other ailments won’t care about your marital status, your children’s age, your title at work and what your investment portfolio looks like, much less that “you’ve been meaning to get this done.”

We shouldn’t wait until the moment there is a medical emergency before we get started. During an emergency, the combination of high emotions and a frantic rush to get something in place causes judgement to become muddled, which leads to errors.

What is more, the legal alternatives without a plan can be bleak. If a person is permanently incapacitated (meaning does not have the cognitive ability to manage his or her affairs) and no documents are in place, such as powers of attorney or advance medical directives, the only option is a petition to the court to become guardian and conservator. This is an expensive, time-consuming process, and once appointed, guardians and conservators must report to the court for the rest of the incapacitated person’s life.

If there is an unexpected death without planning, that can be equally harrowing, especially if it is a blended family. Without a will or trust in place, the default rules include spouses and blood relatives, which may or may not reflect who the decedent hoped to include. The process is even more fraught if a person dies with minor children, is a business owner, etc.

Don’t forget about your plan B.

When creating an estate plan, it is extremely important to have alternate representatives named in your documents. These “back-ups” are trusted people who can take over the duties of a particular position (such as fiduciary) if your first choice can’t. And like your first choice, they are authorized to communicate with medical professionals, manage finances, etc.

This is true even after the peak of a pandemic has passed. If you are unable to make decisions for yourself, then yes, your partner or spouse or adult child could be the ideal person to make those decisions for you. But what if that person is in the hospital bed next to you due to an unforeseen accident or illness? Although no one likes to contemplate the possibility of a terrible event befalling one’s loved ones, it is essential to account for various possible outcomes.

Communicate your decisions.

The pandemic taught us that life (and health) can turn on a dime. One of the best things you can do now is to communicate with your healthcare agent (the person you appoint to make healthcare decisions for you if you cannot make them yourself) about the things that you would or would not want to be done for you in the event of a life-threatening event. It is the responsibility of the healthcare agent to act as the patient’s advocate and to make judgments based entirely on the preferences expressed by the patient. 

The same is true for financial decision-makers (fiduciaries). Think about how much effort it takes for you to manage your own financial life — and you know all about your own financial affairs! If something happened to you and your proposed fiduciary suddenly found themselves needing to locate your assets and pay bills, it would be much easier for them to do so if they had been made aware in advance. 

While the pandemic undeniably heightened our awareness of the need for planning, the vagaries of life and health mean that these needs persist. Now is a good time to consider what we’ve learned and get planning in place. 

About Geneva Perry, Esq., Promise Law 6 Articles
Geneva Perry is a partner in the law firm of Promise Law, located in Newport News. Her areas of expertise include estate planning. She offers FREE, weekly, virtual workshops where she explains estate planning issues and concepts. To register, call 757-690-2470 or visit www.PromiseLaw.com.