Estate Planning During a Pandemic: Advance Healthcare Directives

As the novel coronavirus COVID-19 continues to disrupt our daily life and leave us 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 – documents to complete is your advance healthcare directive.

What is an Advance Healthcare Directive?

An advance healthcare directive, sometimes called a medical power of attorney, is a document in which you have the ability to name someone to manage your healthcare in the event you are unable to do so. Your agent (also called a healthcare agent, medical agent, healthcare surrogate, healthcare proxy, or medical proxy) is the person you authorize to make decisions on your behalf and access your medical information. A healthcare directive also allows you to write down your wishes about things like nutrition support, dialysis, end of life arrangements, burial, cremation, organ donation, and more.

Why is it important to choose a healthcare agent now?

According to the CDC, as of April 12 there were 525,704 total cases of coronavirus. Of those cases reported, 20,486 people have died (about 3.89%). 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. In the event you have not named a healthcare agent and you are unable to make decisions for yourself,

What factors should I consider in choosing my healthcare agent?

A healthcare agent 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 important factors to consider when selecting an agent:

  1. 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 healthcare 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.
  2. Location. The person you choose to act as your medical agent should be someone who lives close by and is able to act on your behalf very quickly in the event of a medical emergency or if you need your advocate to serve in that role for an extended time period. In the current times, many people might be under a mandatory or recommended stay-at-home order, or may not be available or willing to travel to another city or state. Consider naming several alternate agents to account for someone’s potential unavailability.
  3. Willingness and ability to serve. Acting as a healthcare agent 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 healthcare 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 agent when the time comes.
  4. Ability to carry out your wishes, no matter what. Your healthcare agent 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 medical agent disagrees with your choices. As a result, your medical agent needs to 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 agent’s opinions differ significantly from yours. Do not choose anyone that you do not trust to carry out your wishes.

Who shouldn’t I choose as my healthcare agent?

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

  1. Minors. Many states have laws expressly prohibiting a minor from being a healthcare agent. The age of majority in Minnesota is 18.
  2. Healthcare Providers. Some states not only prohibit your health care providers from acting as your healthcare agent, 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.

What are the next steps?

With many of us working from home and abiding by the current shelter-in-place order in Minnesota, now is a great time to review and update your estate plan. An Advance Healthcare Directive may be among the most important legal document you prepare, especially in light of COVID-19.

Picking a healthcare agent 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 at (507) 288-5567 or schedule an appointment online to discuss how we can help you and your family be prepared for the future.

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