DON’T HAVE A HEALTH CARE PROXY? THE TIME TO DRAFT ONE IS NOW
During the Pandemic and in More Normal Times a Health Care Proxy Is Essential
COVID-19 has taught us many things. Wash hands. Wear masks. Stay socially distant. One item that doesn’t typically make the cut: Draft your health care proxy. In fact, it’s a serious omission.
Your health care proxy, or a durable power of attorney for health care, is the important legal document that gives another individual the legal power and responsibility to make medical decisions for you if you are incapacitated and cannot make decisions for yourself. That person, your health care proxy or health care power of attorney, advocates for you if you cannot advocate for yourself. Your proxy has access to your medical records, talks to your doctors and guides decision-making on care protocols. The goal is to make certain that the care you receive is in accordance with your pre-stated wishes.
Just listen to the news and hear the stories of serious illness and sudden death wrought by the pandemic. If there is ever a reason to have a health care proxy to face potential end-of-life issues, this is it. As important, though, it’s an essential document for every perfectly healthy over-18 adult during more “normal” times. If you haven’t yet visited your estate attorney to draft and execute this document, the time to do so is definitely now.
Draft Your Health Care Proxy Before a Crisis
Research shows that half of all people over 65 who are admitted to a hospital are unable to make health care decisions for themselves. Therefore, it’s a good idea to draft a health care proxy before a crisis and when you are healthy. This will ensure that your agent is prepared and that a trusted person will be available to interact with doctors to make sure your wishes are carried out. If not, you could end up with burdensome and potentially nonbeneficial therapies that could increase suffering for you and your family. Unfortunately, research has also shown that this is too often the case, and a disconnect occurs between what a patient wants and what is actually carried out.
The health care proxy addresses many aspects of end-of-life care. In the case of terminal illness or a poor recovery prognosis, an individual may want only palliative care, symptom control and pain relief and may wish to decline other more aggressive measures. These aggressive medical measures may include CPR, mechanical ventilation and intubation, blood transfusions, a nasogastric feeding tube and dialysis to name a few. We recommend that you avoid being overly specific in your document, because it is difficult, if not impossible, to fully anticipate the nature of a medical crisis and the needs that may arise.
But Who to Choose?
This is not necessarily an easy decision. Your first thought may be to choose a member of your immediate family (e.g., your spouse, son or daughter), but that doesn’t have to be the case. Your proxy could be a friend, a more distant relative, or someone from your place of worship—the latter which might be a good choice if there are religious considerations attached to your wishes.
The important point is that your proxy really understands your wants regarding care. He or she must have the emotional conviction to carry them out, even if his or her wishes are different than your own. You must have confidence that your proxy’s emotional connection to you will not prevent him or her from advocating in accordance with your preferences, even if medical professionals and/or other family members think otherwise.
Your proxy’s willingness to speak up includes asking questions of doctors and other health care providers relative to your particular health situation. What’s more, persistence matters. Your proxy must probe fully to understand both the immediate medical situation and the subsequent treatment options.
Important Conversations: The Necessary First Step
Regardless of whom you choose, the important first step is having a serious conversation with your family about end-of-life issues. Once you can determine whom your proxy will be, you should engage that person in further conversations in which you address some medical issues that could conceivably come up. In that conversation, you must also articulate how you feel about those issues. For example, you might say things like: “I want to be at home near family and with private nursing care. I want to be comfortable, yet cognizant enough to recognize my loved ones. I want to be able to say my good-byes.” And one last point: You must ask the person you choose about their comfort level in assuming this responsibility. Even more, you must let that person know that it is okay to say no.
The Yin and Yang of Medical Advances
Today, the many innovations in research and technology have resulted in significant progress in the management of serious disease states and medical conditions and can both work for patients and against them. On the one hand, they have enabled medical professionals to diagnose and determine whether a condition is untreatable or irreversible and enable physicians to prolong life despite these determinations—but at what quality. On the other hand, the ability to diagnose terminal conditions, follow respective treatment protocols and determine how long a patient may live after receiving a terminal prognosis, enables individuals to determine the care they would want to receive under the circumstances.
With full understanding of all available options long before a medical crisis occurs, patients can make care choices, sometimes employing combinations of care alternatives. There is no one answer. There are no set formulas. And thinking about these matters, let alone having an appointed proxy act on them, is never comfortable nor easy. Nonetheless, appointing a health care proxy and executing the document that provides the proxy with legal authorizations to advocate is essential. At Phelan, Frantz, Ohlig & Weigbreit, LLC,we are here to give you guidance and to hold your hand through the process—even as early as the time of your first conversation with your family.
Call us at 908.232.2244 and let us help you address these issues sooner rather than later. While not for the faint of heart, they are important considerations for you and your loved ones.
MORE THAN DIVVYING UP YOUR ASSETS: YOUR ESTATE PLAN BECOMES A GIFT TO YOUR FAMILY
Lessons of Intention and Preparedness That Stick
COVID-19 has taught us many lessons, including the importance of being intentional, prepared and ready to confront uncontrollable situations. New Year’s resolutions tend to do that for us, too, because they get us started on a focused beginning as we ring in another year. Should you be wondering what to include among your resolutions, consider putting a review of your estate plan at the top of the list. If you haven’t already visited your attorney to create these documents, or review them, it’s definitely time to do so—and pend your estate plan for at least five years when it will be time to re-evaluate it.
More than divvying up your assets
We’ve all heard about the importance of having a Will, but there’s more to estate planning than how to divvy up your assets. A number of our other blogs address the importance of having a fundamental estate plan in place. Two less frequently talked about but related issues include protections for your college or travel-bound 18+-year-old child and the importance of storing your account passwords in an accessible location.
If you’re the parent of an 18-year-old who’s heading back to college, you’d be wise to have your young adult sign a durable power of attorney with healthcare proxy language before taking off. By signing these documents, your children are giving you permission to act on their behalf and be their important and immediate fallback should a health or financial emergency occur.
A helicopter parent…not
You don’t have to be a helicopter parent to orchestrate this. In fact, COVID has highlighted the need for these documents. We’ve heard of too many kids, now chronologically and essentially adults, who went off to school and got sick with COVID. Their parents had difficulty gaining information about the severity of their child’s illness or finding out where their kids had been moved to quarantine. Plus, there were too many unanswered questions about how the school would plan to keep them safe going forward.
The unknown is tortuous
There’s nothing more troubling than the unknown when it comes to your kids’ wellbeing. The Health Insurance Portability and Accountability Act (HIPPA) works as a great safeguard to your individual privacy because it prevents individuals beyond adult patients and their health care providers from sharing information. But as a parent, it could work against you when it’s time to protect your son or daughter if they’re facing a scary health emergency.
COVID, as well as other health emergencies, could require intercession for life-saving decision-making. Your child may have a high fever and be too sick to discuss a need for surgery. Also, the treating medical professionals may need to know that your youngster reacts allergically to certain medications. Even financially, your child could be quarantined someplace in the states or abroad and unavailable to perform time-controlled financial activities like signing a lease or talking to a creditor.
Sowing privacy oats versus clear communication
The reality is, however, that although you can drive your kid to your lawyer’s office, they must cooperate. At 18, your youngsters may be feeling their oats. They may not want you to know their business, even though these documents benefit them as they would any adult who grants a trusted other the power to act on their behalf when situations require. Clear communication with your child about when and how the documents would be used is critical. Helping them understand that having a healthcare proxy and a durable power of attorney in place are safeguards not encroachments. An experienced estate planning attorney can help explain the value of these documents to your new adult and likely will ask you to leave the room in order to ensure complete understanding and consent.
Where are your passwords
Another important aspect of an effective estate plan is password accessibility. If you’re like many of us, you may misplace or forget your passwords. Passwords are not one of the first things we think about when it comes to estate planning. But nine-times-out-of-10, they are the key to where important information is located.
It’s a good idea to store your passwords in a special folder or envelope that you turn over to your estate attorney. This will make it easy to put a finger on everything when the information is needed. Also be sure to include your passwords on a spreadsheet that catalogues all your important documents and their whereabouts [e.g., Will, Durable Power of Attorney, Trusts, Living Will and Advanced Healthcare Directive, house deed and mortgage documents, investment and 401(k) accounts]. Storing extra password copies in a safety deposit box that holds important documents is also an added protection, as is providing your attorney and your appointed fiduciaries an extra key to your safety deposit box.
In the end, a gift
A new year, especially this one, comes with hope for the future. A topic like your estate may seem dark, an intrusion to holiday spirit and a counterpoint to positivity. But there’s no escaping the importance of the preparedness that comes with having an estate plan. There’s no time like the present and the symbolism of the new year’s resolution to take action. If you think about estate planning as a gift you’re giving your family, you just may decide that there’s no better way to ring in the new year.
When you turn to Phelan, Frantz, Ohlig and Wegbreit, LLC, we will partner with you on every step of your estate planning process. Call us at 908.232.2244 to set up an appointment, begin a new year with intention and be prepared for wherever life takes you and your family.
2 IMPORTANT DOCUMENTS PARENTS AND COLLEGE-BOUND KIDS NEED TO DISCUSS
Pragmatism versus privacy
It may seem like just yesterday that your son or daughter was breaking the bonds of home to go to preschool. Now, the kid on whom you’ve devoted so much time and care over the years, whom you’ve laughed and cried with through joys and sorrows, is heading off to college or even a gap year abroad.
Your kids are 18 now, or almost so. Chronologically, they are adults, and entitled to all the rights that come with adulthood. Privacy is among those rights. Believe it or not, even if you’re paying college tuition for your kids, claim them as dependents on your tax returns and insure them on your health insurance plans, you cannot intercede on issues concerning their health or finances without their permission.
healthcare proxy and durable power of attorney
You don’t have to be a helicopter parent to have them sign two important documents, a healthcare proxy (also called a healthcare power of attorney) and a durable power of attorney. By signing these documents, your children are giving you permission to act on their behalf when situations necessitate this. These documents allow you to be your kids’ important and immediate fallback in a health or financial emergency. Otherwise, you may face delays in gaining information or, in a worst-case scenario, be required to petition the court for conservatorship or guardianship.
Thanks to the Coronavirus (COVID-19) pandemic you may be looking at an early summer send- off for your college bound youngster, and we’re only now getting out of lockdown. Still, scheduling a trip to your attorney’s office is a priority. Having your young adult understand the importance of these documents and sign them is a must-have addition to your summer parental to-do list.
Not about spying
Your youngsters may be feeling empowered by their new independent status. You certainly respect that independence and want them to use that privilege wisely. The issue is not about your need to keep an eye on them. There’s an important distinction to be made between their desire to keep the events of their lives close to the vest and the necessity of them—like all adults—having responsible people to assist or take over in critical situations.
Your child’s medical records, for example, are like the medical records of all adults: protected by the Health Insurance Portability and Accountability Act (HIPAA), HIPPA states that health records are private between the adult patient and their health care provider. Without authorization, parents are not entitled to access their adult children’s records. In fact, under HIPAA, medical facilities (including college infirmaries) can withhold information about whether your child is admitted.
Sadly, situations requiring intercession in decision-making could be life threatening. All too often we hear of bad accidents or hospitalization from alcohol poisoning. Or, your youngster could have a ruptured appendix and be too sick to discuss a need for surgery. There could also be nonlethal issues. Your kids may have to head to the college infirmary, and the medical staff must contact you for history on your child’s allergies to certain medications.
Even financially, while studying abroad, your youngsters may be unavailable to perform time-controlled financial activities. You could be called upon to sign a summer apartment lease on their behalf or talk to one of their creditors. In fact, you’ll be able to conduct all financial business for your child when he or she signs this document—anything from writing checks, buying/selling or renting real estate, contacting creditors and making investments to contacting his or her insurance company, renewing his or her vehicle registration, or putting money in his or her bank account—even wiring funds to the American embassy where he or she is living.
Both the healthcare proxy and the durable power of attorney may kick in from the moment your child signs it, which is the preferable handling. Alternately, your adult child can specify that it be activated by a specific event, for instance, if he or she becomes incapacitated. The latter, called a springing power, however, requires that someone (typically a medical professional) must decide when an individual is actually unable to advocate for him- or herself. In life-threatening moments, determining incompetence can take added precious time when you can’t spare it.
Their willingness is all
As you might expect, you can take your rising freshman to your lawyer’s office, but at the end of day, he or she must be willing to sign the documents. At 18, your youngster may still think you are clueless—even more, that now on the brink of true adulthood, they don’t want Mom and Dad to know their business.
The mentality of “what happens at college, stays at college” is understandable and learning to manage crisis independently is an important part of the college or young-adult experience. More importantly, your children have the right to maintain their privacy. But the reality is that health issues arise, and financial matters often must be handled quickly. Having a healthcare proxy and/or a durable power of attorney in place are critical safeguards that benefit your adult children—just as they benefit any adult who grants another trusted person the power to act on his or her behalf when situations necessitate this. As in any case, communication with your child about when and how the documents would be used by you is critical.
Alternate appointees for strained relationships
As a parent, you are the best person to be in charge of your child’s medical and legal matters. But sometimes parent-child relationships are strained. In these situations, you or your attorney can encourage your child to appoint another trusted adult like an aunt, uncle or older sibling. In these cases, it’s also a good idea to name an alternate. Your child’s first choice may be unable or unwilling to serve in this role at a given time.
The primary message to convey to kids is that it’s imperative to have a responsible person at the ready to act in their stead if and when time-sensitive health or financial issues arise.
At Phelan, Frantz, Ohlig and Wegbreit, LLC, we understand this is a delicate conversation for you to have with your children and know we can be of assistance. In these situations, because your children become our clients, we’ll discuss these issues with them privately. At a time when these young people are on the brink of being the most independent they’ve been in their lives thus far, we will counsel them. And as we do with all our clients, we will guide them to act in their best interests.
Call us at 908.232.2244 to schedule an appointment for your young adult and put these important documents in place.
Standby Guardianship: An Option for Parents Faced With Temporary Illness or Disablement
Peace of Mind for Parents During the Coronavirus Pandemic
It comes as no surprise that the common guardianship anxiety shared by parents of young children has heightened during the Coronavirus (COVID-19) pandemic. The nagging thought of Who will take care of my children if something happens to me is now very pointedly What if I’m exposed to or stricken by COVID-19—particularly if you are a single parent or healthcare worker on the front lines. The quarantine and isolation that result can be extremely traumatic for children who may be transferred to an unfamiliar environment.
Fortunately, Statute 3B:12-72 in New Jersey allows you to appoint a Standby Guardian. A Standby Guardian is the trusted individual you designate to care for your children if you are temporarily physically or mentally disabled. During the pandemic or in any period of disablement, this option provides you with peace of mind knowing that someone you trust will be immediately available to help care for your children.
Custody during your lifetime
Much like with a Power of Attorney, a Standby Guardian receives custody of your kids during your lifetime. The Standby Guardian Designation allows you to grant temporary guardianship to a family member or friend until you recover. A specific event triggers the start of the standby role. Even then, you are able to maintain authority in your children’s lives but require the day-to-day assistance for their physical and financial care.
The Standby Guardianship Designation has been a helpful tool for any parent who faces a scenario that will temporarily interfere with the daily care of their children. Whether part of a single or two-parent family, Standby Guardianship can come into play for parents encountering a short-term career relocation or an illness. Now, with the pervasive threat of COVID-19, the statute serves as an affordable and easily accessible option that provides you with the security of knowing your children will be protected if you are in any way unpredictably affected.
In New Jersey the statute allows a six-month period. A Standby Guardian is typically needed to provide only limited remedial help with money management or other advice and guidance. It is distinct from a Permanent Guardianship which is typically designated in your will to provide for the care of your child in the event of your death.
Easily completed process
The process for appointing a Standby Guardian is straightforward and easy and does not require court intervention nor medical documentation from your physician. You sign a written document, which is witnessed and notarized. The document identifies the triggering event, your child and/or children and the Standby Guardian who must also consent in writing to serve in the role.
COVID-19 has made all of us painfully aware of the need to have a solid estate plan in place. If you are a parent to minor children, Standby Guardianship is another component to consider to ensure that your children will be cared for should you be quarantined or incapacitated by COVID-19.
At Phelan, Frantz, Ohlig and Wegbreit, LLC, we will always be responsive and intuitive in handling the difficult questions that you have regarding guardianship or your estate planning. We are here to expeditiously and empathetically guide you through the process and ensure that your loved ones will be protected…in the face of Coronavirus and in other situations, no matter what.
Please call us at 908.232.2244 to safeguard your family’s future.
ESTATE PLANNING DURING COVID-19: ADAPTING TO THE TIMES
More People Get Onboard With Estate Planning During COVID-19
The corona virus (COVID-19) has changed lives in ways we’ve never experienced or even imagined before. In short order, we’ve been required to stay home, practice social distancing and take diligent safety and health precautions as recommended by the Centers for Disease Control and Prevention to flatten the curve and prevent the spread of this highly contagious disease.
Heightened awareness regarding the importance of estate planning during this time is one silver lining that may result from the dark cloud of this devastating pandemic. In response to the critical need for conversations about existing estate plans or the creation of a concrete plan, trust and estate attorneys have been forced to recreate the way in which they consult with clients. Attorneys have been finding creative and safe ways to confront the logistical obstacles posed by the legal formality that accompanies the execution of estate planning documents.
An abundance of calls and inquiries
We have been struck by an increase in calls from individuals inquiring about estate planning. Understandably, these calls are taking on a much different tone. In the past, when people came to the office to discuss their estate plan, it was clear the conversations were theoretical—a talk about something hopefully very far off. Now, whether a caller is young, old or middle-aged, the tone is heavier. Rather than checking another item off their to-do lists, the indiscriminate nature of COVID-19 has forced us all to focus more on our own mortality. Offering a safe and open space for clients to have these conversations and provide some peace of mind is important to the lawyers at Phelan, Frantz, Ohlig & Wegbreit.
Business, but not as usual: Technology is key
In most instances, the key estate planning documents are the Will, which controls the proper disposition of assets at death, and the Durable Power of Attorney and Advance Directive/Health Care Proxy, both of which enable others to make financial and medical decisions for us if we are not able to do so. Technology has become a powerful force in how attorneys and clients get the planning process under way and, sometimes, in facilitating the execution of final documents.
For the planning piece, most lawyers are using video conferencing technology to facilitate conversations between clients and counsel so that the appropriate documents may be crafted. More ingenuity is required when it comes to signing the documents. This is so because under New Jersey law, Wills are only valid if executed in the presence of two witnesses. Further, they are only “self-proving” if a notary (third-party) notarizes the signatures of the person making the Will and the witnesses. POAs and Health Care Proxies similarly must be witnessed (only one) and notarized.
New places to execute documents
Under normal circumstances, witnesses preferably are not “interested parties” – beneficiaries or fiduciaries – of the estate for which a document is being executed. Conditions caused by the pandemic, however, may limit the options available to those signing documents.
Face-to-face signings may still occur – most typically in law office parking lots with gloves and masks intact, each participant using separate pens and exercising proper distancing but within sight and sound range of the person (the testator) signing their Will and for whom it is being prepared. Once signed, documents can be witnessed, notarized and collated by staff who have remained at a safe distance. Porches or window-separated settings provide alternate and acceptable locations.
Earlier this month, Governor Phil Murphy signed into law a bill that permits remote notarization effective immediately. This provision eases the need for face-to-face meetings for document execution and allows estate planning attorneys a greater degree of flexibility to accommodate the health and safety concerns of their clients.
It’s fair to say that both clients and attorneys are finding that these alternate ways of doing things are cumbersome, if only because they are so different and, right now, feel unnatural. But it’s the best clients and attorneys can do to avoid delays at this time.
Not easy but necessary
Important as it is, estate planning is always a delicate subject. These days the discomfort associated with the topic is ten-fold. The anxiety being experienced by everyone is legitimate and as professionals, spouses, parents, and sons and daughters, we have these same worries.
Regardless of whether legal interactions by Zoom or in parking lots becomes the new norm, we will continue, as always, to make our clients’ needs a priority. We remain focused on our clients’ safety during this difficult time and are committed to being a partner who will listen and assist.
At Phelan, Frantz, Ohlig & Weqbreit, LLC, we will carefully listen to your unique family circumstances and, as always be responsive, and intuitive in handling the difficult questions that you have regarding your estate planning during COVID-19 or anytime. Please call us at 908.232.2244 to learn how we can assist you in crafting your Will and important accompanying documents that best fit your wishes and needs.
