President Trump and First Lady Melania Trump have announced positive results for COVID-19. At about the same time, several other people in the White House also tested positive. In the United States alone, the pandemic has infected more than 7.5 million people and killed nearly 215,000 of them. Worldwide, the pandemic has infected more than 36.5 million people and killed more than a million of them. In today’s pandemic, it is more important than ever to ensure that your estate planning documents are up to date. It is especially important to ensure that your documents relating to your health are up to date. These documents are the Health Care Power of Attorney, Advance Directive, and HIPAA. It is important to have several layers of decision makers.
In a general power of attorney for health care, you designate an “agent” to make health decisions for you when you are not able to make those decisions on your own. You can also assign a subsequent agent to make decisions if the first agent is unavailable or unable. You can set additional successors as well. It is especially important to name additional successors in today’s pandemic. The fact that both the President and Melania Trump tested positive for COVID-19 at around the same time illustrates the importance of naming several successors. It is very common nowadays for your initial agent to succumb to the same disease. If you name multiple successors, especially in a different house, you increase the odds that an agent will not be affected and is able to act on your behalf.
Advance directive expresses your wishes regarding end-of-life decisions. Without this clear expression of your desires, you must survive even if you do not have a reasonable chance of recovery, even if it will only prolong your suffering. An advance directive is sometimes called a “will of life” and is often incorporated into the same document as a health care power of attorney.
The Health Insurance Transfer and Accountability Act of 1996 requires health providers to maintain the confidentiality of your protected health information. While this is primarily a good thing, sometimes you want certain people to be able to access your PHI. For example, you want your healthcare agent to have access to your information so that they can make informed decisions about your health. Also, you want trusted agents such as the agent under a financial power of attorney and the subsequent custodian of your trust to have access so they can see if they need to step in to manage your financial affairs, which is their duty. HIPAA Power grants access to your PHI to those you designate. In fact, without that power, your loved ones may not know you’re in the ICU with COVID-19.
It’s important to have these three documents, but it’s also important to keep them up to date and name their successors in them. Often in the current pandemic, the disease affects more than one person in a family or area. If no successor is appointed (or such successor is also incapacitated), there may be delays in obtaining approvals for various treatments or implementing end-of-life decisions. So, maybe you name your wife first, then your adult son, then your brother or sister, etc. Keep in mind the importance of naming successors who are not in the same household and may not be in the same area.
Today’s pandemic is difficult for all of us. Precautions like washing your hands, social distancing, and mask wearing can all make us all safer. Keeping your estate planning documents up to date helps ensure that if preventative measures don’t work, your loved ones and trustees can help you through illness and make it easier for you and your loved ones.
Stephen C. Hartnett, JD, LLM
American Academy of Estate Planning Lawyers, Inc.
9444 Balboa Street, Suite 300
San Diego, CA 92123
Phone: (858) 453-2128