Unless you have been living in a bubble (which might actually be a good idea), you have heard about the novel Coronavirus, or COVID-19, which the World Health Organization has declared to be a pandemic.
It’s a scary time in the world, and this article isn’t intended to make things scarier.
On the contrary.
My goal is to help you get some peace of mind. Because even though this health crisis has left many of us feeling helpless, there are a few simple — yet incredibly important — legal tools that can make a HUGE difference for you and your loved ones.
Estate Planning Matters Now More Than Ever
Coronavirus is not an ordinary virus.
It can ultimately cause respiratory failure, requiring patients to be intubated and put on a ventilator. (You know, that thing hospitals are running low on?)
For many, that’s the most frightening aspect of this pandemic: it can cause temporary or permanent incapacity, i.e., the inability to care for or make decisions for yourself.
That is the question clients have asked me the most lately:
What happens, legally speaking, if I am incapacitated by Coronavirus and can no longer make healthcare decisions for myself?
Generally, no one can make healthcare decisions (or often even talk to doctors) for you unless: (1) you sign a legal document giving someone that authority, or (2) a court appoints someone as your guardian.
Even under ordinary circumstances, a guardianship can be costly and time-consuming. But with courts across the country temporarily closed (through May 15th, in Oklahoma), obtaining a guardianship is more difficult than ever.
So the best option is to plan ahead and designate someone who can make healthcare decisions for you, if you are unable to make them for yourself. Here are several ways you can do that:
Durable Power of Attorney
A durable power of attorney gives someone (your "attorney-in-fact") the ability to act for you in certain situations, even if you are no longer competent to do so.
For example, you can empower a family member to make healthcare decisions for you.
I strongly believe that a durable power of attorney is the single most important estate planning document that you can have. Consider this:
Documents such as a will or a trust matter to YOUR FAMILY after your death, but a power of attorney can matter to YOU during your lifetime.
Think about it.
If you contract Coronavirus and have to be intubated, you will need someone who can talk with doctors on your behalf. Someone who can access medical records and deal with insurance. Someone who can provide for your care.
Someone who, above all, can help keep you alive.
You can also create a financial power of attorney giving your representative(s) the authority to make financial decisions for you while you are incapacitated. It is crucial to have someone who can, for example, pay bills or take out a loan to pay for your care (if needed).
Having a legally designated attorney-in-fact is always useful. But in the midst of the Coronavirus pandemic, a durable power of attorney is arguably the most important part of any estate plan.
Advance Directive for Health Care
Many people know of this document as a living will.
Unfortunately, that causes a lot of confusion. Because contrary to what a lot of people think, a living will and a last will and testament are NOT the same thing. Not even close.
An advance directive for health care is an estate planning document that allows you to state whether or not you want to stay connected to life support and/or receive artificially administered nutrition and hydration under certain end-of-life conditions.
If keeping you hooked up to life support is only going to delay the exact moment of your death (i.e., you aren’t going to get better), do you want somebody to “pull the plug” for you?
In other words, an advance directive is about making life-or-death decisions.
It’s not the most pleasant thought. But with this pandemic creating a widespread need for life support, it is more important than ever to consider whether you want someone to “pull the plug” if the need arises.
HIPAA Releases/Waivers
The purpose of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA” for short) is to protect your medical and financial information.
Which is mostly great. There’s just one problem:
If you are incapacitated, your representatives or caretakers need to be able to access your health information in order to effectively care for you.
And the privacy laws included in HIPAA can make that very difficult.
To avoid that obstacle, you can execute a HIPAA release/waiver authorizing someone(s) to communicate with healthcare providers (e.g., doctor, hospital, insurer, etc.) and to access your otherwise confidential health information.
Most providers want a HIPAA release/waiver that has been executed in the past twelve months. So make sure that your document is up to date.
Do-Not-Resuscitate Order (“DNR”)
A Do Not Resuscitate Order (“DNR”) is not the same thing as an advance directive.
With an advance directive, the question is whether life should be discontinued — after you have already been connected to life support.
The question with a DNR is whether you should be connected to life support in the first place.
A DNR is a document by which you specify that you do not want to be resuscitated in the event of a cardiac or pulmonary event. Each state has a different form, but generally a DNR consent form must be certified by a physician.
This is most common with individuals who are elderly or have terminal or end-stage conditions.
You can find Oklahoma’s DNR consent form by clicking here. Talk with your doctor to determine whether a DNR is right for you.
Prepare for Coronavirus With a Power of Attorney
In the midst of a pandemic known cause temporary incapacity, it is crucial that you and your loved ones (especially those who are elderly or have a chronic condition) have healthcare documents in place.
Importantly, make sure the documents are current. As Forbes recently noted, “old” legal documents that haven’t been updated in a while may be viewed as stale and could be difficult to use.
To create or update your healthcare documents or other parts of your estate plan, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation telephone consultation by clicking the button below.
David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
