Love In The Time Of The Corona Virus: Basic Estate Planning Considerations – Part I

Gerald Nowotny
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Gerald Nowotny - Law Office of Gerald R. NowotnyOverview

As a Spanish student at West Point, I read a lot of Spanish literature. One of the books that I read was Gabriel Garcia Marquez’s Cien Años De Soledad (One Hundred Years of Solitude). This literary effort made him one of Latin America’s greatest writers. However, he was not a “one hit” wonder. He also wrote Love in the Time of Cholera. It’s during a time of crisis like the current pandemic when we get refocused on what really matters – spouse, children, family and friends. Love in the time of the Corona Virus means taking all of the necessary steps to ensure that your family is legally, financially and emotionally cared for in the event of your demise. When the dust settles, consider calling your neighbor, the life insurance agent, to purchase some life insurance. No family member ever complained about receiving too much money in a time of need.

In the current Corona virus pandemic, so many answers to questions remain unanswered. How long will it last? Will I become sick? How about family members? What happens if I die from the corona virus? What effect will it have on my job? The problem with the unknown is the unknown itself!

I have written plenty of articles on tax planning, but this is the time to write about basic estate planning. The current pandemic is a call to review your existing estate planning documents. If you do not have the following basic estate planning documents –(1) Last Will and Testament; (2) Living Will; (3) Durable Power of Attorney; (4) Pre-Need Designation of Guardian; (5) Guardianship Provisions for Children;(6) Healthcare Power of Attorney, what are you waiting for? If the current global pandemic is not enough motivation, to address these issues, see me after class!

If you already have these documents, you may be foggy about what they say. Time to review these documents. Certain medical peculiarities about the corona virus require an immediate review, otherwise you could end up signing your own death warrant.

This series of articles will focus on each of the important documents involved. This article focuses on the difference between a living will and Do Not Resuscitate orders and some potential dangers lurking in existing documents.

The Difference Between a Living Will and a Do Not Resuscitate Order

A living will is a legal document that allows a person to declare in advance their wishes about medical care in the event of a terminal condition. The living will also allows you to dictate your wishes if you end up in a coma or vegetative state and can no longer make your own medical decisions. The living will allows a person to decide what medical care you will receive – or not receive – when they cannot speak for themselves.

In most states, a living will is only effective if the person is in a hospital or healthcare facility. In a living will, the declarant (you) provides specific medical instructions. In a living will, the declarant may want to refuse specific medical treatment by listing those treatments. For example, a living will may provide:

“If at any time I am incapacitated and have a terminal condition, or have an end‐stage condition, or am in a persistent vegetative state and if my attending or treating physician and another consulting physician have determined that there is no reasonable medical probability of my recovery from such condition, I direct that life‐prolonging procedures be withheld or withdrawn when the application of such procedures would serve only to prolong artificially the process of dying, and that I be permitted to die naturally with only the administration of medication or the performance of any medical procedure deemed necessary to provide me with comfort care or to alleviate pain.”

The key elements for the living well are the declarant’s incapacity and terminal medical condition. Alternatively, the living well may address circumstances where the declarant is in a perpetual vegetative state with no medical probability of survival without artificial means to prolong life.

A Do Not Resuscitate Order (“DNR”) is an advance medical directive that allows a terminal patient to direct health care professionals including paramedics to withhold cardiopulmonary resuscitation (CPR) including artificial ventilation, cardiac compressions, endotracheal intubation, and/or defibrillation if the patient’s heart stops or stops stop breathing, whether at home or in a healthcare facility.

These documents require review in the current pandemic. Many of the documents used in basic estate planning, particularly standard forms obtained online or elsewhere, language that could be completely contrary to what you might wish to have done during the coronavirus. Some of these documents may prohibit intubation under all circumstances.

If you are not presently in a terminal condition and contract coronavirus, since it is a lower respiratory tract infection with symptoms felt in the chest and lungs, it is possible that you would need to be intubated to survive. With restrictions in place in existing estate planning documents prohibiting the use of a ventilator or respirator, you could be signing your own death warrant unintentionally. This restrictive language in boilerplate forms had an extended stay in a hospital connected to an array of tubes to avoid being artificially kept alive. If you have basic estate planning documents, you need to review this provision immediately.

Summary

If you don’t have basic estate planning documents, you need to get them prepared now. If you have basic estate planning documents, you need to review your documents to see what they say and ensure these documents meet your current game plan, particularly the living will. If senior citizens have DNRs in place, they need to be reviewed.

In the current pandemic, it might be hard or impossible to drive the road to the local attorney’s office for a consultation. If you have any questions or would like a consultation on these basic estate planning needs, consider a virtual meeting with a lawyer. Be well and stay well!

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Gerald Nowotny
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