"Estate planning is a fairly morbid topic. Nobody wants to do it. But it's not an if proposition; it's a when proposition," said Joshua Rosenberg, partner at Kelley Kronenberg who specializes in estate planning, elder law and probate and guardianship litigation. "Because of coronavirus, people have come to the abrupt conclusion that they cannot procrastinate. You could be infected and very quickly find yourself in a life or death situation."
As the coronavirus crisis escalates, catastrophic projections of 100,000 to upwards of 240,000 deaths in the United States are forcing people to act on long-deferred intentions to get their affairs in order. No one is immune. Legal experts urge all mortals -- not just the elderly and not just the wealthy -- to put their end-of-life plans in writing.
"We are seeing a tidal wave, at least a doubling in the volume of calls and inquiries," said Miami lawyer Bruce Stone. "Clients who thought they could delay this item on their to-do list are now in panic mode and want it finalized immediately."
The last time estate planners experienced a surge was in 2012, when people worried that Congress would lower the threshold of the estate or "death" tax.
"Back then it was mainly rich people worried about money," Stone said. "This is worse. Now people are afraid they are going to die."
Top priorities are creating a living will that states your wishes should you become incapacitated, designating a surrogate or proxy to make medical decisions, granting power of attorney to someone to make financial and legal decisions and preparing advance directives such as a Do Not Resuscitate order.
A plan, including a last will and testament or trust that spells out what happens to your assets and who will be guardian to minor children upon your death, spares you the mess on "Succession," the HBO TV series about an aging media mogul playing power games with his heirs. Peace of mind is preferable to the family in-fighting, exorbitant legal costs and hours in court your survivors will encounter if you leave your fate in limbo.
"You do not want to get turned back into the court system or find yourself a ward of the court and face the indignity of having your life dragged through court," Rosenberg said.
He and Stone cited the case of Terri Schiavo, the Florida woman who lived in a persistent vegetative state from 1990 to 2005 as her husband fought to remove a feeding tube and her parents fought to keep her connected. At one point, Gov. Jeb Bush intervened to have the tube reinserted. After years of lawsuits, injunctions, appeals and stays, Schiavo was allowed to die. She was 41.
"In the Terri Schiavo case, there was no written recitation of whether she wanted to be kept on life support or not," Rosenberg said. "Her husband and her parents had different goals. The case illustrates all the painful battles and financial disasters that can befall your loved ones if you don't have a living will."
Coronavirus has presented a new wrinkle in the best-laid plans. Typically, your health care surrogate would be in the hospital with you advocating for your desires if you are not able to express yourself. But the COVID-19 disease is closing off hospitals to visitors and confining patients to isolated circumstances. Lawyers recommend adding language to your documents that will authorize your surrogate to give instructions over the phone, by email or during an online conference. And make sure to amend any old documents that may have prohibited intubation.
"We're hearing heart-wrenching accounts of patients on a gurney in the hallway of a hospital hooked up to a ventilator with no loved one by their side, and families saying goodbye on cell phones or walkie-talkies," Stone said. "I feel like the grim reaper but I'm telling clients you've got to assume you may die alone. Your family can't get in to see you or talk directly to your doctor. Because of the nature of coronavirus, no hospital can let people in off the street."
Coronoavirus has erected a major obstacle for Floridians: State law requires two in-person witnesses when a will or other documents are signed. Quarantines and social-distancing rules make it difficult to round up witnesses. Florida has been slow to adopt electronic and remote signing laws approved by other states.
"For wills, trusts, surrogacy forms and power of attorney, Florida's new statute allowing online execution will not be effective until July 1," Stone said. "Many states have changed, relaxed or suspended these laws to catch up to modern digital times but we are stuck with very strict rules in Florida."
The Florida Bar is hoping to introduce legislation that will retroactively validate any end-of-life documents completed without in-person witnesses during the coronavirus health emergency, Stone said.
"I was talking to an elderly couple, they both have medical problems, they are sequestered now and their deadline for an updated living will has been accelerated," said Stone, former president of the American College of Trust and Estate Counsel and an adjunct professor at the University of Miami School of Law. "You should still draw it up, name surrogates and sign it even without witnesses. Something is better than nothing. You can always revise it later."
Rosenberg is being flooded with requests for elder law guidance. Older adults and their relatives are struggling with urgent and awkward circumstances where they are confined to nursing homes or senior communities where no visitors are allowed. Some have dementia, Alzheimer's, memory loss or other geriatric issues.
"People are cut off and don't know where to turn," Rosenberg said. "'How do we care for our loved ones? How do I make sure my grandmother is getting services when I can't even visit her? How do I help her update her documents when they haven't been touched in years and she needs to designate new people? What if my father gets the virus? What if I die and there's nobody to look out for my parents?'"
Rosenberg talked to a woman in an Adult Living Facility whose husband had dementia and recently died. She has no immediate family nearby, friends can't visit and she has difficulty using a computer. Another woman came to South Florida to take care of her ill mother, got stranded here after the outbreak spread and now her brother is being uncooperative as they try to decide on a facility and end-of-life plan for their mother.
In another instance, he spoke to a woman who has been contemplating divorce for a long time "but she'd never pulled the trigger and now she's afraid of what will happen to her property if she gets infected," Rosenberg said. "She says, 'If I die, he gets all the money, runs off with another woman and nothing goes to my kids.' They also had a business together and need a business succession plan.
"In this area of law we are dealing with intricate personal issues. It's akin to social work. We're attorneys at law but also counselors at law. We're not suing people. We are trying to make sure people are properly cared for."
Just as you are preparing your home and adjusting your hygiene for coronavirus, so should you make choices about what happens if you become incapacitated or die, Rosenberg said. How do you want your funeral to be conducted? Cremation? Organ donation? Who gets the cherished heirlooms? According to Caring.com, only 37 percent of Americans have a will.
It's possible to make a will online. Consult websites such as Cake ("Navigating mortality? We'll be your guide"), Gentreo ("Life happens") and Willing ("Legal wills made easy"). But lawyers caution that do-it-yourself wills have their pitfalls, and are not necessarily easier and cheaper than consulting with an estate-planning specialist who knows state law.
Stone highly recommends reading the information offered by the American College of Trust and Estate Counsel on their website and watching its new video, "Getting Your Affairs in Order: Essential Legal Documents."
The Real Property, Probate, and Trust Law Section of the Florida Bar provides access to vital information on its website.
Rosenberg's firm, Kelley Kronenberg, has created a coronavirus text hotline and is posting coronavirus resources.
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Surge on wills: Fearing death by coronavirus, people ask lawyers to write their last wishes
I'm glad to see this article because it may encourage people to do their will, power of attorney, and etc.
ReplyDeleteI didn't appreciate the references to Terri Schiavo. She was an innocent victim of a greedy system.