It’s Thursday, March 19th. I was just retained by a son up in New Jersey for his elderly parents who are in an independent living facility here on the Treasure Coast. Unfortunately, the parents’ facility is in “lockdown”, as are so many facilities at this time – no visitors allowed. That is a problem on many levels for their family, but it is a specific legal problem because the parents’ home is scheduled to be sold – the closing is set for later this month, and their existing powers of attorney (POAs) are very out of date. Because of that, the title company is averse to allowing their son to handle the closing on behalf of his parents, as the named “backup agent” on the POAs. We will be working with the title company and the facility to attempt to address this situation, but there are no guarantees we will be able to resolve it, due to the parents being unavailable to sign new POAs, which require witnessing and notarization to be valid.
Over the years, we have addressed situations where new clients, and occasionally existing clients, needed emergency, last minute signings of important legal documents – in hospitals, skilled nursing facilities, etc., but we have never had to deal with entire health care/residential facilities being closed to visitation! As a society and a nation, we are in unchartered territory. Especially for seniors, the best approach to avoid situations such as the one above, is to make sure you have the correct, and up to date, legal documents in place. The Coronavirus pandemic is expected to continue to develop and worsen over the next several weeks, and probably months, and we will be seeing more cases of seniors being unavailable to create or update their planning due to their senior care facilities being closed to visitors/quarantined, or them simply running out of time and opportunity, due to serious illness, or their mortality, associated with this nationwide outbreak of COVID-19 (which stands for Corona Virus Disease 2019 ). Some typical legal documents are considered below.
Durable Powers of Attorney (POAs) are important documents whereby you can appoint family members, friends, or other fiduciaries to have the legal authority to handle legal, financial and related matters for you. Although Florida law makes the authority in these POAs immediate, the general idea is that they are used when you (the “principal”) are unavailable or incapacitated. It is important to make sure these documents are properly prepared and up to date, as Florida law has specific language required for the different actions that your agent may need to perform for you.
Health Care Surrogates/Living Wills (HCSs/LWs) are also important documents to have in place. Although Florida law permits certain family members to be default decision makers if no “advanced planning” medical documents are in place, medical care providers always prefer and often require HCSs, especially if it is a non-spouse (son, daughter, etc.) who is attempting to direct treatment for a seriously ill parent, relative, etc. Living Wills can be integrated into a HCS or be standalone documents – they are very important for end of life decision making. For all HCSs/LWs, it is crucial to have federally required HIPAA release language integrated into the documents, so that your agent(s) can access your medical records and information.
Last wills and/or living (revocable) trusts are needed, in the event of one’s passing. Although wills require probate court, both wills and trusts can be used to transfer assets to your loved ones, under the terms and provisions that you desire, with the person or persons whom you trust in charge. Folks who pass away without a will die “intestate”, and often the probate court is required to transfer some or all assets to default beneficiaries, as dictated by Florida law. It is almost always much better to have a will and/or trust in place, then to die with little or no planning (intestate). Whether a will or a trust is most appropriate for you, is where an experienced estate planning attorney comes in. They can help you assess your situation and provide you with good choices.
The purpose of this article is not be negative or depressing! It is to emphasize all the avoided problems and advantages that result from good planning – legal and otherwise: “Before anything else, preparation is the key to success.” ― Alexander Graham Bell, inventor. Almost everything in life benefits from prudent planning, and legal/estate planning is a prominent example. Contact a qualified attorney to be sure your legal concerns are properly addressed.
Finally, in these stressful days, weeks and months, we must all model good behavior for our family members, co-workers, and fellow citizens. So, be good to each other and remember the Golden Rule when at home and when “out and about”, while following the instructions and guidelines from our government officials.
Shaun W. Wiedrick is an Estate Planning and Elder Law attorney with 20+ years of experience. His office, Shaun W. Wiedrick, P.A., is located in The Royal Palm Financial Center, at 759 SW Federal Hwy., Suite 212, Stuart, FL 34994. If you have questions, contact his assistant at: firstname.lastname@example.org or call (772) 463-4443.