Estate Planning While Under COVID-19 Restrictions
About Nathan Samuels
Nathan is a Senior Associate in the firm’s property, trusts and estates practice group and has experience in a wide range of property and private client matters.
With so much uncertainty, many of our clients have expressed genuine concern about their personal estate planning. How does this current crisis affect my existing estate plan? Does it even make sense for me to consider my estate plan in such an unsettled environment or should I wait until things return to normal? And, should I wish to do so, how do I go about creating, implementing or changing an estate plan under such uncertain conditions? Behind these questions, it is clear that much of the anxiety that clients have comes not so much from the feeling that something needs to be done but more so from a perceived inability to do anything about it, at least for the immediate future. And this is understandable. These are difficult days and so much of our normal lives has been significantly limited in ways we would never have imagined. But this crisis need not be characterized by inaction when it comes to your estate planning. Instead, consider these proactive, practical and effective guidance points to help you navigate your estate planning concerns while under Covid-19 restrictions:
1. Focus on a few key estate planning documents
A Will is typically the best starting point for any estate plan because it functions as a stock taking exercise for your most valuable assets and relationships. Properly prepared, it will ensure that the management and distribution of your assets is done in accordance with your wishes and handled by the person(s) you’ve chosen to be your estate representative. Without a Will the law will determine your estate representatives and who your estate will go to, which may not correspond with your wishes.
An Enduring Power of Attorney is perhaps the second most important document to consider when developing your estate plan. An enduring power of attorney allows someone else to manage your estate even after you’ve temporarily or permanently lost your mental capacity. In the event of an unforeseen medical emergency or the early onset of dementia or Alzheimer’s disease this can be an invaluable tool as it will allow your appointed “attorney” to both take care of you and your estate without having to go through the very expensive and time consuming process of a Receivership Application in the Courts.
An Advance Healthcare Directive (also known as a Living Will) sets out healthcare instructions in the event of a medical emergency or the temporary or permanent loss of mental capacity. An Advance Healthcare Directive can also include the appointment of a healthcare proxy – which gives another person the ability to make medical decisions on your behalf in the event you are unable to make such decisions yourself. This document not only makes sure your wishes are followed when it comes to your medical treatment, it also makes what can often be an extremely difficult time for your family considerably less stressful.
2. Take advantage of remote options to communicate with your attorney
Due to its personal nature, estate planning clients often prefer (at least at some stage) to discuss and receive legal advice in person. Still there are clients that prefer to communicate over the phone while others prefer writing their thoughts down and communicating via email.
Whatever your preference, what must be kept in mind in our current circumstances, is that although the means of communication may vary, your goal should remain the same: finding a way to communicate comfortably and openly with your attorney which will facilitate accurate and timely advice. In the absence of in-person meetings, this may mean exploring video conferencing options, getting comfortable reviewing documents electronically (instead of relying on hard copies) or preparing for extended telephone calls with your attorney ahead of time so that the time spent on the call is used effectively and efficiently.
In addition to using alternative lines of communication, many attorneys provide clients with a Will Questionnaire that can be completed in the comfort of the client’s home and on their own time. In fact, in my practice, once the Will Questionnaire is completed and returned, I’m often able to provide my clients with an initial draft Will via email even before the client sets foot in the office, which is ideal in these circumstances and also saves the client both time and expense.
3. Consider the most appropriate way to finalize your estate planning documents
Since estate planning documents are so important, the law sets out very specific rules about how they must be executed in order for them to be valid. These requirements, however, can make it challenging to finalize estate planning documents while social distancing restrictions are in place; but there are practical workarounds that your attorney can walk you through.
In the current environment some clients are using this time to review, plan and prepare draft documents with their attorney with the intention of executing final documents at their attorney’s offices once circumstances allow. Other clients are taking this process a step further – preparing to physically execute final documents as soon as possible once shelter in place has ended (but with social distancing restrictions likely still at play) by following out-of-office signing instructions provided by their attorney. There are even workarounds for clients with an immediate need to finalize and execute estate planning documents while sheltering in place or in quarantine.
Remember no estate plan is the same. So with appropriate advice, carefully consider the plan of action that is most suitable for your circumstances – which will hopefully provide a bit more certainty in these very uncertain times.