Author’s note: This blog post was originally posted on March 16, 2020. After six months, we felt certain updates were appropriate. Those updates have been indicated below.
Clients, Partners and Friends:
In light of the unfolding events we are all following closely regarding COVID-19, I wanted to share something important with you from an estate planner’s perspective which may help inform you as we endure this global health pandemic together. It concerns the execution of a Texas medical power of attorney.
As our clients who have executed this directive know, a medical power of attorney allows any individual to name a designated spokesperson to make medical decisions on the individual’s behalf if the individual for any reason cannot communicate with their doctor (i.e. coma, stroke, under anesthetic, etc.). Many people who do not have this directive in place may be asked upon admission to a hospital or other health care facility to execute one.
My concern is that as the COVID-19 crisis continues, it may become very cumbersome if not impossible for many individuals to properly execute this directive in a hospital setting. The medical power of attorney requires either two witnesses or a notary, and neither may be available if hospitals are forced to put strict limits on who comes in and out of the facility. Notaries may not be allowed entry and doctors/hospital staff cannot serve as witnesses. This goes for all types of health care providers and facilities.
UPDATE: In addition to the concerns mentioned above, certain updates should be considered for both the medical power of attorney and life support directives. Does your medical decision maker have the right to make decisions for you remotely via Zoom or other videoconferencing? Does your life support directive include exceptions for COVID-19 treatment. These considerations are vital responses to the current climate and ones we believe will have far-reaching impacts.
Also, our court systems experienced a backup of cases in the wake of the COVID-19 shutdown, as did many state bureaus of vital statistics – the entities that issue death certificates. For those who have not updated, now may be a very appropriate time to consider alternative estate planning techniques, such as revocable trusts, which may help make settling an estate much easier on family members.
A final note regarding family members. As adult children (18+) return to university campuses, we strongly recommend they are outfitted at a minimum with the appropriate decision-making documents (i.e. the financial power of attorney and medical directives). In Texas, parents are NOT default decision-makers for their adult children. Having these documents in place can be very helpful for parents who may need to make decisions for an ill or injured child, as well as gain access to their children’s medical records.
This is a rapidly developing situation and we are praying for a speedy resolution. We know the Father is in control and we yield our timing to His perfect timing and wisdom.
If there is anything we can do to serve you, please do not hesitate to contact us.