Estate Planning During COVID-19: How Parents Can Be Prepared for Incapacity

April 28, 2020


Many parents with young children are asking what they can do to be prepared if they get sick with COVID-19 and are incapacitated temporarily, or do not recover. Two issues are keeping parents up at night:

  1. Who makes financial and medical decisions for me if I cannot make them myself?
  2. Who takes care of my children if I can’t?

If you are incapacitated from disease but do not have a plan in place, it would be necessary for the matter to go to Court and have the Court appoint a guardian or conservator. This can be a time consuming and expensive process during normal times and is especially challenging currently, as Courts are closed due to shelter orders and will only hear emergency matters during the COVID-19 crisis. While attorneys are presently bringing these matters through the Courts with success, it can be expensive for clients and their families.

Parents can avoid this scenario by having three documents in place:

  1. Durable Power of Attorney: The Durable Power of Attorney names an Attorney in Fact to handle your financial affairs. Instead of having to wait for the Court to appoint a Conservator, your Attorney In Fact can have instant access to your bank accounts and can sign your name on checks and other legal documents. You can name a backup in case your primary Attorney is unable to serve.
  2. Health Care Proxy: The Health Care Proxy names an Agent who can make medical decisions for you, such as what medications to administer or what treatments may be tried. The Health Care Proxy can also contain “Living Will” language which sets out your wishes for end of life decisions. You can tailor your Health Care Proxy document to instruct your Health Care Agent whether you want the hospital to keep you alive using artificial means or not. You can name a backup Health Care Agent as well.
  3. Emergency Guardianship Proxy: In a situation where both parents are sick and unable to care for their children, an Emergency Guardianship Proxy allows the parents to select who would care for their children in an emergency for a short time period without the need to go to Court. This document allows the parent of a minor to nominate a temporary Guardian, and the parent may delegate to the Guardian any power that the parent has regarding the care, custody or property of the minor that may be required during this period of incapacity. The nomination may be revoked or amended by the appointing parent, in which case the revocation or amendment must be delivered to all interested persons. If both parents are ill and unable to care for their children, this appointment would allow the selected surrogate to decide how to care for their children.

All of these documents dissolve and end upon your death. At that point your Will controls the distribution of your assets and who is named as the guardian and conservator of your minor children. Therefore, it is also important to have a Will in place with provisions for a Testamentary Guardian.

It is also wise to have a Trust in place when you have minor children. Under Massachusetts law, children are entitled to receive their full inheritance upon turning age 18. With a Trust, you can select a Trustee who will be in charge of the Trust property and customize the terms of how and when your Trustee should make distributions to your children, including the benefit of making distributions after the children are adults, and at any age and in any intervals or for any purpose you decide.

While it is especially important to have these documents in place during the COVID-19 crisis, the coronavirus is just the latest in a string of viruses such as SARS, MERS, EEE, H1N1 and even Lyme disease. Sadly, the past decade has required us to plan forward to protect against one disabling contagious infectious disease after the next. It is important to have these documents in place even after the coronavirus passes because these documents protect our families now and in the future regardless whether there is ever a similar virus in the future to be prepared for.

Burns & Levinson attorneys can advise you and prepare you and your family members with these critical documents so that you can rest assured, during the COVID-19 pandemic and going forward, that you and your family members are protected.

View the full article on COVID Considerations here.

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