COVID-19 estate planning challenges are creating complex issues about pandemic healthcare responses, fraud prevention, and constitutional restrictions on government. This article describes the problems and solutions that healthcare providers, government officials, and lawyers are pursuing to overcome Coronavirus challenges.
COVID-19 Estate Planning Challenges in Healthcare
COVID-19 estate planning challenges begin with fundamental healthcare issues. The US Centers for Disease Control and Prevention (CDC) website (https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html) says the COVID-19 virus is highly contagious. The website says the infection may spread through respiration droplets sprayed by an infected person’s cough or sneeze to someone up to 6 feet away. The site also indicates that people may contract the virus by touching a contaminated surface and then touching their mouth, nose, or eyes.
Staying at Home or in a Locked-down Healthcare Facility to Reduce Pandemic Spread
The easiest way to avoid contracting COVID-19 is to stay home and avoid contact with other people and surfaces that infected people have toughed. Most US communities allow people to shop for groceries and obtain “essential” goods and services from businesses and professionals. However, most hospitals and nursing homes restrict guest visits to protect patients from infection.
COVID-19 Estate Planning Legal Challenges
Estate Planning to Appoint Decision Makers
A thorough estate plan should authorize people to help a confined patient manage personal and healthcare decisions. Estate planning tools allow trusted people to make critical decisions and take daily actions on which we all depend and take for granted. A plan also helps prevent criminals and irresponsible from taking advantage of a healthcare patient’s vulnerability.
Healthcare laws prevent people from imposing healthcare treatment on a patient without consent unless the patient cannot direct the patient’s care options. A person lacking the ability to understand and communicate healthcare choices can’t make healthcare decisions. So, an incapacitated patient needs a healthcare representative (HCR).
The law allows a person to appoint an HCR before experiencing a health crisis. The law provides a list of HCRs for people who do not plan ahead. Indiana lists HCRs in this order:
- a person whom the patient previously appointed to serve as HCR in an adequately prepared appointment of HCR;
- a guardian or HCR appointed and authorized by a court to make the patient’s health decisions;
- the patient’s spouse;
- the patient’s adult children;
- the patient’s parents;
- the patient’s adult siblings (brothers or sisters);
- the patient’s grandparents;
- the patient’s adult grandchildren;
- the patient’s most closely related aunts, uncles, cousins, nieces, and nephews within the same degrees of relationship to the patient as the previously listed family members;
- an adult friend who has maintained regular contact with the patient and is familiar with the patient’s activities, health, and religious or moral beliefs; or
- the patient’s religious superior if the patient is a member of a religious order, such as a priest or nun.
A prepared patient who has already appointed and HCR should have fewer worries than other people. For example, a patient may prefer that the patient’s brother or sister make healthcare decisions instead of the patient’s substance-abusing children.
Estate Planning Antifraud Protections
Dishonest people have taken advantage of vulnerable people throughout history. Estate planning laws help protect against fraud by requiring that a person and witnesses sign a will and some kinds of healthcare advance directives in each other’s presence. A person must sign a power of attorney in the presence of a notary public.
Indiana led the nation in 2018 with electronic estate planning laws featuring high-tech anti-fraud protections. When a person makes an electronic will, the person and two witnesses must all “sign” the will in each other’s physical presence. Similarly, a person must “sign” an electronic power of attorney in a notary public’s physical presence.
COVID-19 Estate Planning Anti-Fraud Protection Problems
Anti-fraud provisions in Indiana’s traditional and electronic estate planning systems create conflicts with healthcare facilities’ necessary precautions that restrict visitor access to patients. Witnesses and a notary can stand outside a patient’s window to witness and notarize documents, but it is impossible when the patient is on the fourth floor of a hospital.
States Relax Estate Planning Requirements in COVID-19 Crisis
Many states have temporarily relaxed estate planning anti-fraud provisions to address social distancing requirements. The Illinois Governor and Secretary of State issued emergency orders and to rules for Illinois residents’ estate plans. Indiana’s Governor and Supreme Court took similar emergency actions in late March for Hoosier Estate plans. The emergency orders allow clients, witnesses, and notaries public to sign and exchange documents with videoconferencing and electronic signature technology.
COVID-19 Estate Planning Adaptations
Hawkins Elder Law and many elder law colleagues are using creative methods to help Indiana and Illinois clients make estate plans safely. Many lawyers and clients are meeting by videoconference on mobile phones and computers with WebCams to discuss and make estate plans with electronic signatures. Lawyers are also using low-tech estate plan signing strategies like setting up tables in office parking lots to maintain safe distances during meetings.
Health concerns are preventing hospital and nursing home patients from signing estate plans under the emergency orders and rules. Still, elder law attorneys are doing everything they can to help clients make estate plans under these difficult circumstances.
About the Authors
Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys.
Jeff is a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation. He is also a member of the Illinois State Bar Association and the Indiana Association of Mediators. He served as the 2014-15 President of the Indiana State Bar Association, and he is a registered civil mediator.
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