The pandemic has triggered an increased need to have proper estate planning. As we continue to limit and restrict activity to contain the spread of the COVID-19, creating and executing a proper estate plan is still possible to protect you and your family should you become ill, quarantined, or hospitalized.
While the pandemic has changed how these documents may be finalized, the initial steps to creating a proper estate plan remain the same.
1) Understand the Critical Estate Planning Documents
Last Will and Testament
Your Last Will and Testament are your written instructions to the probate court appointing a personal representative to administer your probate assets, designating beneficiaries of your assets that are subject to probate court administration, and nominating a guardian to care for your minor children (if any). While many consider such an appointment of a guardian in the event of a parent’s untimely death, such an appointment is also effective in the event the parent is in the hospital and incapacitated. By preparing such a document, you get to control who will care for your children in the event you are unable to do so.
A Trust Agreement is a written contract that governs the management and distribution of the assets transferred to it. So long as you are alive and competent, you are the Trustee of your Trust and you maintain the ability to amend or revoke the terms of your Trust Agreement at any time. Upon your disability or death, the successor Trustee(s) of your choosing will hold, manage, and distribute the assets in accordance with the Trust Agreement. By the terms of your Trust Agreement, you have the ability to exercise “control from the grave” – i.e., you can specify the manner and time of distribution to your beneficiaries. Assets that are titled to your Trust when you die are not subject to probate court administration.
Trust Agreements are not necessary in all situations. You should consult with an estate planning attorney to determine whether a Trust Agreement will be beneficial for you and your family.
Durable Power of Attorney
A Durable Power of Attorney names another person (the “Agent”) to handle your financial matters. Having a Durable Power of Attorney prevents the need for your family to seek the appointment of a conservator at the probate court. Typically, the powers granted to the Agent are broad and include the ability to handle any and all financial matters that you would be able to handle if you were competent and capable of doing so. If you become hospitalized, your Agent would have the ability to pay your medical expenses, including doctor and hospital bills and navigate your insurance plans.
Patient Advocate Designation
A Patient Advocate Designation appoints an individual to make your medical and mental health treatment decisions for you. In the event you are unable to understand or communicate about your health matters, having a Patient Advocate Designation prevents the need for your family to seek the appointment of a guardian at the probate court. Your Patient Advocate only has the authority to act if you are incapable of making such decisions for yourself. This Designation also provides guidance to your Patient Advocate about the types of treatment you may or may not want. Due to the current health crisis, most hospitals have been restricting family and other visitors from joining their loved ones at the hospital. These new restrictions make having a Patient Advocate Designation of particular importance as many hospital’s visitor policies provide an exception for individuals serving as Patient Advocate.
Delegation of Parental Powers Over Minor Children
By way of a power of attorney, a parent may delegate to another person, for a period not exceeding 180 days, any of the parent’s powers regarding care, custody, or property of the minor child, with few exceptions. If you have minor children who need care and it becomes necessary for you to be quarantined, preparing this power of attorney for the children’s caregiver will give the caregiver proper authority to care for your children, including seeking medical treatment for your children, if medical treatment becomes necessary.
2) Schedule a Virtual Appointment with an Estate Planning Attorney
While we are still trying to limit in-person contact due to the virus, you can schedule a virtual initial consultation with an estate planning attorney from the comfort of your own home. Typically, an attorney will offer this initial consultation free of charge. It is an opportunity for you to discuss your assets, share your wishes, and ask any questions. After the consultation, you should be asked to outline and provide a complete record or detail of your assets. Then, an estate planning attorney will give you guidance on the estate planning documentation needed for your specific situation.
3) Preparation and Execution of Final Documents
After reviewing your asset information, a draft of your estate planning documents can be mailed or email to you for your review and approval. Michigan law requires that certain estate planning documents be signed in the presence of two witnesses and a notary public. Prior to the pandemic, this was often completed in person at the attorney’s office. Now, clients can finalize the documents utilizing a virtual witness and notarization process as outlined by the State or final documents can be mailed directly to you and an appointment can be scheduled at your bank. The bank will provide two witnesses and a notary to execute the final documents. The final signed documents would then be returned to the attorney to be secured electronically and the attorney will send you a binder of your signed documents for your safekeeping.
While the pandemic has changed our perspective and the way we go about doing our daily routines and activities, protecting your family with a proper plan is one way in which you can give yourself some peace of mind during these difficult times. If you have additional questions about creating an estate plan, please connect with a member of the Rhoades McKee Estate Planning Team.More Publications