Friday, October 9th, 2020
With the spread of the novel coronavirus (COVID-19), and the abundance of fear and uncertainty that has come with it, many people have questions about creating estate plans or modifying their current estate plans. There is a common misconception that estate planning documents only concern what will happen with your property after you pass away. Considering the potentially tragic health outcomes that can result from contracting the coronavirus, it is not a bad idea to consider how you want your property distributed after you are gone. However, proper estate planning also includes the implementation of documents that will become effective while you are still alive. Among those living documents are the Health Care Proxy, HIPAA Release, and Advanced Directives or Living Will.
The Importance of Having Health Care Documents During the Pandemic
In the midst of a health crisis such as a pandemic, it is important to execute or update health care documents. Under Massachusetts law, a Health Care Proxy is a document appointing a health care agent to make decisions for you in the event that a doctor determines you lack the ability to understand and appreciate the nature and consequences of health care decisions. A HIPAA Release form allows the family members and loved ones named in the document to access your protected health information in the event that you are hospitalized. Finally, the Advanced Directives or Living Will allows you to state your wishes and preferences for your end-of-life care. However, in Massachusetts, Living Wills are not officially recognized and are therefore not binding. For that reason, we often incorporate our clients’ end-of-life wishes in their Health Care Proxy. Most often, those wishes include the desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. At a minimum, your estate plan should include a Health Care Proxy and a HIPAA Release. If you have a Health Care Proxy, you should make sure that it is up to date, and that you still want the people you named to be your health care agent, and that they are still available to do so. If it has been several years since you executed a Health Care Proxy, you may want to consider executing a new one.
Of the documents listed above, the Health Care Proxy is the most important one to have. In the event that you are medically incapacitated, a Health Care Proxy names a person you know and trust to automatically have the authority to make medical decisions for you, in accordance with your wishes that are stated in the document. The person you name in the document becomes your agent automatically in the event of your incapacity – they do not have to go to court and be appointed by a judge. If you do not have an executed Health Care Proxy, one of your loved ones will have to petition the court to become your appointed guardian. The process to have a guardian appointed is needlessly lengthy and expensive – and it can be avoided by executing a simple document. Having a Health Care Proxy is a positive step towards ensuring your health and safety in the event of a catastrophe, but more importantly, it makes things much easier for your loved ones.
The Impact of the Pandemic on your Current Health Care Documents
One of the more concerning threats of the coronavirus is that people sometimes end up being intubated and placed on ventilators. I have spoken with clients who have expressed concern about the impact of this threat on their health care documents, and many have wondered if there should be specific language in their documents to address their concerns. Additionally, some people are worried that if they have language that they do not want to have their life artificially prolonged, that a doctor will pull them off a ventilator, or will deny them a ventilator. In my opinion, the issue is not so much the drafting of the language, as much as what the clients wishes are.
As stated above, most people state their desire to not have their life artificially prolonged in the event that a doctor determines that they have no chance to recover. Technically, this language shouldn’t have any special impact or be interpreted any differently in the case of coronavirus. In other words, if you have this language in your health care documents, doctors should not take you off a ventilator if you have coronavirus unless they believe you have no hope of recovering. A person with coronavirus will likely have the opportunity to state their wishes without the doctor having to defer to the health care agent that the principal appointed in their Health Care Proxy. Now, if you have specific wishes that you want to explicitly state in your health care documents regarding the coronavirus, you can absolutely do so. However, the most important estate planning you can do during the pandemic is have an up to date Health Care Proxy and a HIPAA Release, along with an updated Will, to make life easier for your loved ones in the event that tragedy strikes.
If you have any questions or concerns about executing health care documents or modifying your current ones, please contact our office. Telephone: (781) 848-0040
Paul Bella, Esquire
This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.