Preparing for Coronavirus: The #1 Legal Document Every Adult Needs to Have

Estate Planning, Health Care, Living Will, Power of Attorney / Advanced Health Directive, Advanced Medical Directive, Healthcare Agent, Healthcare Power of Attorney, healthcare surrogate, St. Petersburg Estate Planning

As the coronavirus continues to disrupt daily life and leave Americans uncertain of the future, you don’t have to feel helpless during this pandemic. In fact, now is a great time to be proactive and plan ahead should you or a loved one fall ill. One of the most important and relatively easy things you can do (and should do) is to select a healthcare surrogate and set up your advance healthcare directive.

What Is a Healthcare Surrogate?

A healthcare surrogate (also called a healthcare agent, medical agent, a healthcare proxy, or a medical proxy) is a person you authorize in a medical power of attorney to make decisions about your medical care if you are too ill to make them yourself or are otherwise unable to communicate your wishes with your healthcare providers.

Why is it important to choose a healthcare surrogate now?

As of April 7, there are 391,665 total cases of coronavirus. Of those, only 9,169 are in critical condition (about 2.34%). So even if you get sick, you’ll most likely have mild symptoms and recover quickly. However, since no one knows exactly how they will be affected by the virus, it’s best to plan for the worst and hope for the best. Part of that planning is making sure someone can make healthcare decisions for you if you fall ill and are unable to make those decisions for yourself.

Factors to Consider in Choosing Your Healthcare Surrogate

A healthcare surrogate is an important role, and the person you choose will have the power to make critical healthcare decisions—like consenting to a treatment plan, whether to accept or refuse medical treatment, and which healthcare providers or hospitals to use for your care. As a result, it is crucial to think carefully about who you choose to fill this role. Many people simply assume that their spouse or their oldest child should take on this role, but they are not always the best suited. Here are some factors to consider when selecting an agent:

Emotional maturity. People handle stress differently, and not everyone is able to set aside their emotions and make level-headed decisions when someone they love is suffering. In addition, some people are simply not assertive enough to act as a strong advocate in the face of differing opinions of other family members–or even health care providers–who suggest a treatment plan you have informed your medical agent you do not want. You should choose someone who is able to think rationally in emotionally difficult circumstances, even if that means you must look outside of your family to find the best person for the job.

Is willing/able to serve. Acting as a healthcare surrogate can be a time-consuming and emotionally draining job. Make sure that the person you choose is willing and able to set aside the time necessary to serve as your patient advocate. Don’t just assume the person you want to be your medical agent is willing: Be proactive and ask if he or she is willing to take on that role. Keep in mind that if you are elderly, you may want to avoid naming a friend or family member who also is older, as there is a greater chance that they will experience mental or physical decline at the same time as you, which could impede their ability to serve as your advocate when the time comes.

Will honor your wishes no matter what. Your healthcare surrogate has a duty to make decisions on your behalf that you would have made to the extent that he or she is aware of your wishes. This is the case even if your healthcare surrogate disagrees with your choices. As a result, your healthcare surrogate should be someone who is willing to set aside his or her own opinions and wishes to carry out yours. It may be prudent to appoint someone who has values and religious beliefs that are similar to yours to reduce the instances in which your surrogate’s opinions differ significantly from yours. Do not choose anyone that you do not trust to carry out your wishes.

People You Should Not Choose

Many states have laws prohibiting certain people from acting as your healthcare surrogate, even if they are otherwise well-qualified to act in that role:

Minors. Many states have laws expressly prohibiting a minor from being a patient advocate. The age of majority could be 18, 19, or 21 years of age, depending upon the state. Some states have exceptions to this prohibition for married or emancipated minors.

Your health care providers. Some states not only prohibit your health care providers from acting as your healthcare surrogate, but also preclude the owner, operator, or any employee of any facility in which you are a patient or resident from acting in that role. Some states that have adopted this prohibition make an exception for individuals who are related to you. A few states, such as Kansas, Missouri, and Kentucky, also have an exception if that person is an active member of the same religious organization as you.

Need help?

Medical directives may be among the most important legal documents you prepare – especially in light of COVID-19. Picking a healthcare surrogate can be tricky and we can help you think through your choice. We can also help with any other estate planning needs you may have—whether that’s setting up a financial power of attorney, last will and testament, or a trust. Please give us a call today to discuss how we can help you and your family be prepared should you fall ill from the coronavirus.

Get These Three Estate Planning Documents In 2019

Estate Planning, Executor, Health Care, Living Will, Personal Representative, Power of Attorney, Wills / Advanced Medical Directive, Capacity, Durable Power of Attorney, Executor, Health Care Proxy, Personal Representative, St. Petersburg, Will

These may not be the first things you are thinking about as we launch into a brand-new year, but the idea is not to wait until you’re not thinking clearly or when it’s too late and you don’t have what you need to protect yourself, your family and your property. The details, from the Fox Business news article, “3 financial documents everyone needs,” are straightforward. Put this on your to-do list today.

A Will. The essential function of a will is to ensure that your wishes are carried out, when you are no longer alive. It’s not just for rich people. Everyone should have a will. It can include everything from your financial assets to life insurance, family heirlooms, artwork and any real estate property.

A will can also be used to protect your business, provide for charities and ensure lifelong care for your pets.

If you have children, a will is especially important. Your will is used to name a guardian for your minor children. Otherwise, the state will decide who should raise your children.

Your will is also used to name your executor (referred to as the Personal Representative in Florida). That is the person who has the legal responsibility for making sure your financial obligations are honored and your assets are distributed according to your wishes. Without an executor, the state will appoint a person to handle those tasks.

An Advanced Medical Directive. What would happen if you became ill or injured and could not make medical decisions for yourself? An advanced medical directive and health care proxy are the documents you need to assign the people you want to make decisions on your behalf. The advanced medical directive, also called a living will, explains your wishes for care, including end-of-life care. The healthcare proxy appoints a person to make healthcare decisions for you. As long as you have legal capacity, these documents aren’t used, but once they are needed, you and your family will be glad they are in place.

A Durable Power of Attorney. This document is used to name someone who will make financial decisions if you are not able to do so. Be careful to name a person you trust implicitly to make good decisions on your behalf. That may be a family member, an adult child or an attorney.

Once you’ve had these documents prepared as part of your estate plan they documents should be reviewed and updated every now and then. Life changes, laws change and what was a great tax strategy at one point may not be effective, if there’s a change to the law. Your estate planning attorney will help create and update your estate plan.

Reference: Fox Business (Dec. 19, 2018) “3 financial documents everyone needs”

Now That Same-Sex Marriages are Legal, Do They Make Financial Sense?

Asset Protection, Estate Planning, Estate Tax, Probate, Trusts, Wills / Advanced Medical Directive, Capacity, Estate Planning Lawyer, Health Care Proxy, Joint Tenancy, Power of Attorney, Same-Sex Marriage, Wills

Every couple’s situation is different, and there are pluses and minuses for couples considering whether or not to tie the knot.

Every couple’s situation is different, and there are pluses and minuses for couples considering whether or not to tie the knot.

In June 2015, the U.S. Supreme Court ruled that same-sex couples had the right to marry. A 2017 Gallup poll, reported in a recent WTOParticle, “Gay and Getting Married? Financial Advantages and Disadvantages,”found that only 10.2 percent of gay couples in America have wed.

Financial implications may not be at the top of the list for gay couples deciding to marry, but, there are several to consider. Some may not be beneficial, but some are. The most significant issues for married gay couples, like married straight couples, should be retirement planning, estate planning and tax planning.

The major benefit for gay couples marrying is the survivor’s Social Security benefits. If you’re lucky enough to have a retirement plan where there is a pension benefit, it can be transferred from spouse to spouse. The other big issue is gifting: spouses can leave an unlimited amount of money between spouses. But if you’re not married, that doesn’t happen.

A major difference in what each partner makes can gum up the works, especially with the IRS. Consider the marriage penalty tax and figure out if you’re better off being married or not being married. You could be subject to not getting some of the tax exclusions that would’ve worked to your advantage, if you weren’t married. This is especially true, if there is a wide variance in income between both partners. You should also think about loss-limit deductions on things such as investment property, IRA and retirement account deductions, and other tax planning situations that can become significant considerations when one partner earns much more than the other.

When combining the income of the two spouses, it may put them both into a higher tax bracket. This will add more tax liabilities. You should also think about homeownership and retirement. For unmarried gay couples with a big variance in incomes, who own their home as joint tenants with right of survivorship, the surviving individual will get the house, when the first one passes away. However, there could be some gift consequences, depending on how the money went into paying for the house and who put more money into it versus who didn’t.

There are also retirement accounts to look at. Married couples can pass IRAs or 401(k)s to one another at death, without triggering taxes. If you die with money in your retirement accounts, the IRS starts taxing that money as soon as your beneficiaries withdraw the money. It also forces a withdrawal within a certain amount of time. However, there’s an exception for distributions to spouses, allowing the money to keep growing tax deferred.

You should also analyze health care. Many businesses offer health care coverage to their employees’ domestic partners. Depending on company policy for family coverage, legal marriage ensures it. There’s also a financial benefit for surviving spouses in a health saving account because that money can be transferred to the surviving spouse. Likewise, a married couple in a joint health savings account can contribute more pretax dollars.

All married couples also legally speak for each other in terms of medical decisions. Unmarried couples, either straight or gay, don’t automatically have that legal representation. For gay couples who opt not to marry, that can be solved with a medical power of attorney,an advanced medical directiveor health care proxy. These legally binding documents should be drafted, certified and available, in the event of an emergency. A power of attorney can cover both health care and financial decisions, if one unmarried partner becomes incapacitated.

When it comes to the legal and financial matters of marriage, it’s wise for all couples to meet with an estate planning attorney before walking down the aisle. You should know what rights and responsibilities come with marriage, and prepare the correct legal documents, so that you are both able to care for each other in every sense of the word, in good times and bad, in sickness and health.

Reference: WTOP (May 30, 2018) “Gay and Getting Married? Financial Advantages and Disadvantages”

Preparing for Coronavirus: The #1 Legal Document Every Adult Needs to Have

Get These Three Estate Planning Documents In 2019

Now That Same-Sex Marriages are Legal, Do They Make Financial Sense?

We'd Love to Talk With You!

Mastry Law, P.A.

Route

Contact Us