COVID-19 Update: Estate Planning
The Covid-19 challenge has changed our perspectives and redirected our planning, in ways we could have never expected. The two most directly impacted areas, for individuals, are health care and the ability to manage day-to-day finances.
Many of you have already executed a Georgia Advance Directive for Health Care (“Advance Directive”) and Statutory Form Power of Attorney (“Power of Attorney”). However, we know that many of you have not. This newsletter includes important information for those with an Advance Directive and Power of Attorney and for those who have not yet prepared an Advance Directive and Power of Attorney.
If you have a current Advance Directive. If you do not have two (2) back-up health care agents named in Part 2 (Back-Up Health Care Agent), you should carefully consider adding two (2) additional health care agents, residing outside the home. This is particularly true if the current health care agent is also a family member who lives in the home. Having multiple health care agents, including those living outside the family home, is advised based on the contagious nature of Covid-19. We also asked that you thoughtfully consider amending Part 7 (Treatment Preferences), if you have checked box (B), by instead checking box (C), which will then allow you to approve use of a ventilator as part of your Treatment Preferences. As it appears that use of a ventilator may have a material impact on your ability to sustain life or recover, retaining such an option would appear to be prudent.
If you have a current Power of Attorney. If you do not have two (2) Successor Agents names, you should carefully consider adding two (2) additional Successor Agents, residing outside the home. This is particularly true if the current Successor Agent is also a family member who lives in the home. Having multiple Successor Agents, including those living outside the family home, is advised based on the contagious nature of Covid-19. Because of the rapid onset of Covid-19, the difficulty in getting a written opinion from an attending physician, and as the courts are closed, we ask that you would thoughtfully consider removing language in your Power of Attorney, if any, which only allows the Power of Attorney to apply on the Principal’s (your) disability. If you signed your Power of Attorney since 2018, such language, if so elected, would appear on page 4 of your Power of Attorney, under the “Special Instructions” paragraph. If your Power of Attorney was signed prior to 2018, such language would appear after a paragraph with the heading “EFFECTIVE DATE AND DISABILITY”.
Wills. If you do not have two (2) Successor Executors named, you should carefully consider adding two (2) additional Successor Executors, residing outside the home. For those of you who have wills containing Testamentary Trusts, if you do not have two (2) Successor Trustees named, you should carefully consider adding two (2) additional Successor Trustees, residing outside the home.
Trusts. If you do not have two (2) Successor Trustees named, you should carefully consider adding two (2) additional Successor Trustees, residing outside the home.
If you do not have an Advance Directive, Power of Attorney or Will. If you do not have an Advance Directive, Power of Attorney or Will, we strongly recommend that you take appropriate steps to put said documents in place, at the earliest possible date. You should note that the laws in these matters have changed materially over the last several years and former living wills, medical powers of attorney and general powers of attorney will not provide you with the protections and choices you have by executing current Advance Directives or Powers of Attorney.
Next steps. Governor Kemp issued Executive Order 04.09.20.01 on April 9, 2020 (the “Order”) that temporarily permits remote notarization and witnessing of documents during the COVID-19 Public Health State of Emergency. The Order allows for documents to “be signed, subscribed, executed, witnessed, attested, acknowledged, or affirmed in the physical presence of another individual or other individuals may be satisfied by the use of audio-video communication technology or any similar real-time means of electronic video conferencing that allows all of the parties to communicate with each other simultaneously by sight and sound.” As a result of the Order, we can now assist you in updating your existing Advance Directives, Powers of Attorney, Wills, Trusts and other documents.
If you need to update existing Advanced Directives, Powers of Attorney, Wills or Trusts, need new Advance Directives, Powers of Attorney, Wills or Trusts, or would like to discuss these issues and documents, we encourage you to contact us by email or phone (404) 365-5682 and we will be pleased to assist you.
