By: Stephen R. Elville, Principal and Lead Attorney of Elville and Associates, P.C.
March 31, 2020 - At present there are few things more important than containing and stopping the spread of COVID-19, taking care of those who are infected, supporting doctors, nurses, other medical personnel, and hospitals, providing vital masks, ventilators, protective and other equipment that is urgently needed, and sympathizing and supporting those who have lost loved ones (in Maryland, in the U.S., and around the world). Elville and Associates urges Marylanders and any persons reading this article to adhere to CDC, national, state, and local pronouncements and policies concerning safety, social distancing, and sheltering in place as absolutely essential to saving lives and minimizing suffering. To say the least, this is a time for unity, community, action, and contemplation.
For those persons who are concerned about what they and other family members need to do right now in terms of estate planning, elder care and special needs planning, and incapacity planning in the face of the increasing pandemic, the following are practical steps that may be taken by any person of reasonable intelligence, ability, and access to telephone or electronic media and communications. For clarity, I have outlined these as six-step processes.
Powers of Attorney, Advance Medical Directive, and MOLST - arguably the most important planning action any Marylander can take right now is to check on the status and location of their current incapacity planning documents - financial power(s) of attorney and advance medical directive. Furthermore, a working knowledge of the MOLST (Medical Order For Life Sustaining Treatment) is essential, especially for those over sixty (60) years of age. I will cover the fundamentals of each of these documents briefly here.
Financial Power of Attorney - this essential incapacity planning document provides for the management of your financial affairs should you become incapacitated (when you no longer have the ability to manage your own financial matters). Some estate planning and elder law attorneys consider the financial power of attorney to be the most powerful and most important of all estate planning documents. I do not disagree. There is a reason for this - having at least a basic power of attorney means that you are very likely to avoid adult guardianship of your estate or property should you become incapacitated, because by being proactive with the implementation of a properly constructed financial power of attorney you are choosing the private management of your affairs without the necessity of guardianship and the involvement of your local Circuit Court. Moving away from the issue of avoidance of guardianship and self-determination, a well-crafted financial power of attorney also addresses your personal preferences concerning the question of how much flexibility (how much power) you want your agent to have. Should your agent’s authority be limited to only basic fiduciary powers – for example those routine powers such as the management of bank accounts and retirement accounts, the power to buy and sell property, and so forth? Or, should your agent’s authority include broader fiduciary powers, such as the power to create and fund trusts, receive compensation, make gifts of your assets, spend down for Medicaid eligibility, and other more aggressive powers? This issue comes down to one main question: how much flexibility do I want my agent to have during a time of my incapacity? The answer to this question is very personal and will vary for each individual. From an estate planning, and in particular, from an elder law planning perspective, the more flexibility you provide for your agent (your attorney-in-fact under a financial power of attorney), the more options your agent will have to pursue and fulfill your goals should you be incapacitated. Since all planning is goal-driven, it follows that the powers you provide for your agent in a well-crafted and well-considered financial power of attorney should reflect those goals, whether they be for the minimization of taxes, asset preservation, charitable intentions, or the protection of loved ones. Yes, my third and last point about financial powers of attorney in this article relates to this last reference. Most people do not consider that a financial power of attorney is not only for their own protection in the event of incapacity, but is also for the protection of anyone who may be dependent on them. So a comprehensive power of attorney or set of powers of attorney will typically incorporate provisions that provide for the protection and support of not only you, but anyone who may be dependent upon you. This realization is an epiphany for most people. Thus, a financial power of attorney that includes well-chosen agents - those trusted persons (fiduciaries) who will manage your affairs if you are no longer able to - is a substitute for guardianship, provides for great flexibility or limited flexibility for your agent in accordance with your goals, and can provide not only for your support but for the protection and support of any person who may be dependent on you. So during this time of international health crisis a financial power of attorney represents one of the most powerful legal tools you can employ. Based on what we know right now, the COVID-19 illness is much more likely to render a person disabled, at least temporarily, than to cause death. For this reason, every Marylander should take the following action steps regarding financial power(s) of attorney:
(1) Locate your current financial power(s) of attorney document;
(2) Review your financial power of attorney document carefully and determine when it was signed and whether it is a Maryland Statutory Power of Attorney (if so, you will see those words at the top of the first page);
(3) If your Power of Attorney was signed before October 1, 2010, consider executing a new financial power of attorney (or set of financial powers of attorney) as soon as possible, as financial powers of attorney executed before the effective date of the Maryland Power of Attorney Act (October 1, 2010) are not enforceable by law (but not necessarily invalid);
(4) If you executed a new financial power of attorney after October 1, 2010 but have not updated your financial power(s) of attorney since that time, consider executing new financial power(s) of attorney to ensure that your document(s) contains all the updates to the Statutory Power of Attorney Form since that time;
(5) Whether you previously executed a single financial power of attorney or a set of two (2) financial powers of attorney (one Statutory and the other a non-statutory form), you should review the powers contained in the document(s) and determine whether those powers are sufficiently broad to accomplish your goals (this may require the advice of an attorney); whether your agents and their contact information are correct; whether certain agents are no longer desirable choices or are not available to serve as your agents; and whether new agents should be appointed.
(6) If you do not have a financial power of attorney, as a practical matter it is essential that you execute one as soon as possible. This is true whether or not you utilize the services of an attorney. You may obtain a financial power of attorney, including a Maryland Statutory Power of Attorney, online or through an attorney. What’s important right now is that you have a financial power of attorney; that it is executed properly and is valid in the State of Maryland (if you are a Maryland resident); that it reflects the agents of your choice, along with their accurate contact information; and that you have considered when your agent’s power is effective, along with the powers you wish to provide the agent (degree of flexibility).
Bottom line - a financial power of attorney is an essential estate planning document at all times, but especially now during this world and national health crisis. Your financial power of attorney must be witnessed by two independent witnesses and must be notarized. One of the witnesses can also serve as a notary. For further guidance about the requirements of document execution and the practical problems presented by the need for social distancing, please refer to further information on our website at www.elvilleassociates.com.
Advance Medical Directive - this essential health care document allows you to choose and appoint your health care agents; provide specific instructions and customizations in nearly unlimited fashion; set forth your goals, values, and preferences; determine when the power of your agent(s) becomes effective; make end-of-life decisions or preferences in advance; choose pain relief to alleviate potential suffering; decide whether your agent has the flexibility to change your decisions, or whether your decisions should not be changed even if there is some “better” choice (in the opinion of your agent); make organ donation and bodily donation choices; and make final arrangement decisions, including funeral and burial, cremation, or other arrangements or instructions. Similar to what I’ve described about financial power of attorney documents in this article, an advance medical directive that includes well-chosen agents - those trusted persons (fiduciaries) who will manage your health care affairs if you are no longer able to - is a substitute for guardianship of your person, and during this time of the world and national health crisis is one of the most powerful legal and healthcare tools you can employ. For some people, the advance medical directive is the most important estate/elder law document.
Because of the fairly recent introduction of the MOLST Form (2013-2014) discussed below, there is much speculation that the advance medical directive is no longer important. To this I say “don’t believe it.” The advance medical directive is still very important because (a) it facilitates the appointment of your chosen agents and as mentioned above represents a substitute for guardianship of your person; and (b) it is a written representation of your expressed wishes concerning your health care – and as such it is part of your right of self-expression and self-determination. What could be more important? For these reasons, and especially in light of the COVID-19 threat, every Marylander should take the following action steps regarding their advance medical directive:
(1) Locate your current advance medical directive documents;
(2) Review your advance medical directive carefully and determine when it was signed;
(3) If your advance medical directive does not contain the more recent additions by the Attorney General pertaining to flexibility and the ability of an agent to change your decisions (have flexibility concerning your stated preferences), consider executing a new advance medical directive as soon as possible (assuming flexibility for your agent is desirable);
(4) Review the number of original, executed advance medical directives you may have. If you only have one original copy, consider making photocopies as these are readily accepted by hospitals and medical facilities;
(5) Review your choices and the provisions as set forth in your current advance medical directive and determine the following: do these choices and provisions represent my current choices or preferences, and my overall goals (this may or may not require the advice of an attorney)?; are my agents and the order of my agents correct, and is the contact information for each agent updated and correct?; are any of agents no longer desirable choices and should they be replaced?; are my agents still available to serve as my agent and can I depend on them at a time of crisis?; and are there any practical or other limitations that would prevent my chosen agent(s) from serving as such?
(6) If you do not have an advance medical directive, then as a practical matter it is essential that you execute one as soon as possible. This is true whether or not you utilize the services of an attorney. You may obtain a Maryland advance medical directive online, from the office of the Maryland Attorney General, from a health care facility, or through an attorney. What’s important right now is that you have an advance medical directive; that it is executed properly and is valid in the State of Maryland (if you are a Maryland resident); that it reflects the agents of your choice, along with their accurate contact information; that you have considered when your agent’s power is effective; and that you authorize the ability of your agent to change your stated preferences (flexibility) or not authorize such ability to deviate from your decisions.
Bottom line - an advance medical directive is an essential estate planning and health
care document at all times, but especially now during this world and national health crisis. Your advance medical directive must be witnessed by two witnesses in accordance with Maryland law. No notarization is required. As I wrote in a recent blog, at this time of health care crisis, perhaps the most important and practical thing any person can do is to ensure that they have an advance medical directive and an understanding of MOLST (some states call this POLST). An advance medical directive may be easily implemented in writing, orally, or in electronic form, and there is no requirement that it be notarized. Access to information is easy and straightforward - for a comprehensive overview of Maryland Advance Medical Directives, alternative forms, health care decision making policy in Maryland, and MOLST, please follow these links:
Medical Order For Life Sustaining Treatment – MOLST - attorneys are generally not physicians, physicians’ assistants, nurse practitioners, or nurses, have little or no background in the medical field, and are not qualified to render medical advice. So the following information is based on opinion and observation from the legal side – that aspect of estate, elder, and special needs planning that involves helping and counseling clients through the decision making process for health care decision making. To begin this brief discussion, we’ll note a few basics: the MOLST form is required in Maryland under certain circumstances – Maryland is one of only a handful of states that requires MOLST; the vast majority of Maryland residents are still not aware of MOLST, what it is, and what its purpose and function is, including persons who have been appointed as health care agents and are advocating for their principal; MOLST is ambiguous and its relation to the advance medical directive is confusing at best; how and when MOLST is implemented, and by whom, is mysterious to the individuals, health care agents, and the public; education for the public about MOLST is relatively limited and ineffectual; and the mechanism by which an individual may provide advance input or preferences – mainly, the Health Care Decisions Worksheet (or MOLST Worksheet) is virtually unknown to the public, including senior health care officials. All this to say that because MOLST is required in Maryland, it must be considered as part of planning for health care decision making in Maryland. Therefore, from a legal perspective, every person who executes an advance medical directive and all their appointed health care agents should have (arguably must have) at least a working knowledge of what MOLST is, its purpose and function, the circumstances under which it is implemented, how it may be changed, and more. All persons, especially those over 60, should review MOLST and the Worksheet with their doctor and get advice about the function of MOLST and whether it is advisable to complete a Worksheet in advance, and how the Worksheet may become part of your medical record.
Wills and Trusts – beyond the important incapacity planning documents, it goes without saying that in general everyone should have a will (a Last Will and Testament) or a will substitute (a Revocable Living Trust), especially at this time of crisis. Whether you use a will or a revocable living trust is not necessarily important, so long as you have provided for what happens upon your death for the disposition of your tangible personal property, any specific gifts or special provisions you may have, how the balance or bulk of your estate will be distributed (the residuary portion), and something that is perhaps of increasing importance given the health crisis, what happens to your property if there is a failure of distribution (your named beneficiaries are no longer living). Yet with this said, an estimated 55% of people in the U.S. have no will or estate plan, with this percentage climbing as high as 62% for divorced persons, and as high as 80% for persons under the age of 44. It’s important to remember that signing a will is easy, and there are many resources available today – via online methods and through traditional attorney representation. What’s important to remember is that while estate planning has many definitions, it may boil down to something as simple as this: estate planning is about disposing of your property to the persons or organizations of your choice, at the lowest possible cost. It can be that simple. Of course many times there are other considerations that add complexity, such as the additional incapacity planning provided by revocable trusts, special considerations for tangible personal property, how assets are passed along between spouses, marital protection, asset protection, tax considerations, and much more. But sometimes, especially during a crisis, whether that be a personal health issue, aging, a special family circumstance, or the current health care crisis, what’s important is to implement a will or revocable living trust as soon as possible without delay. I sometimes refer to this as “stop-gap” planning. For these reasons, every Marylander should take the following action steps regarding Wills and/or Revocable Living Trusts:
(1) Locate your original current will or revocable living trust. If you cannot locate your will, call the Register of Wills for your county to see if the will was registered, or contact the attorney who drafted the will;
(2) Review your will or revocable living trust carefully and determine when it was signed and that it is witnessed. Many people have copies of older wills or revocable trusts that are unsigned;
(3) Review the will or revocable living trust further to determine whether it properly reflects your current wishes concerning how you wish to dispose of your property, including tangible personal property, real estate, and other non-retirement assets. Also consider your retirement plan assets (IRAs and Qualified Plans) and check your beneficiary designations – are these correct and do they flow properly in accordance with your overall goals and planning? Along these lines, check on the same for life insurance and non-qualified annuities. Along these lines, review all assets and asset alignment, including the organization if digital assets;
(4) Review your selection of fiduciaries – your personal representatives and guardians under your will, and your trustees, independent trustees; investment and/or distribution advisors; and your trust protector(s). Are these persons still available and appropriate to serve as your fiduciary? Do you need to make any changes in selection or in the order they are to serve? Consider whether you have provided for the flexibility or lack thereof that you desire;
(5) Determine whether changes are needed to your estate planning documents (including any memorandums of intent or letter of wishes), whether they be clear and obvious changes you wish to make, or those legal-technical changes resulting from the advice of your attorney (after review and recommendation by your attorney); and
(6) If you do not have a will or revocable living trust, it may be a practical necessity that you execute one as soon as possible. As mentioned in this article, this is important whether or not you utilize the services of an attorney. You may obtain a will or revocable living trust via a reliable online/electronic method, or through an attorney.
Bottom line - a will or revocable living trust are always essential estate planning documents, but especially now during this world and national health crisis. For further guidance about the requirements of document execution and the practical problems presented by the need for social distancing, please refer to further information on our website at www.elvilleassociates.com.
Special needs trusts and/or other trusts may also need implementation or adjustment. The same due diligence guidelines outlined above generally apply.
Although six-step processes like the ones outlined in this article are recommended for thoroughness, they can be time-consuming. That’s why Elville and Associates pioneered the concept of Self-Directed estate planning through its Elville Self-Direct programs. Through Elville Self-Direct, clients can expedite the implementation their wills, trusts, powers of attorney, advance medical directives, and other planning documents without sacrificing the client educational planning element Elville and Associates is known for. This Self-Directed program includes: client educational review of all estate planning documents including in-person review (or via telephone or videoconference), client exercises and homework, audio and video learning tools, coordination and collaboration with financial and tax advisors, and a family meeting. Elville Self-Direct also incorporates our review of your current estate planning documents, whether or not those documents were drafted and produced by Elville and Associates.
At Elville and Associates, our attorneys and staff are committed to serving our clients, their families, and our communities by way of our caring for clients model and client legal education through counseling and superior legal-technical knowledge. If you would like to set an appointment with Stephen Elville by way of video conference or telephone conference to discuss estate, elder law, or special needs planning issues, please contact Mary Guay Kramer at 443-741-3635, or via email at firstname.lastname@example.org.