How should your assets be divided? Who will make health care decisions for you if you're incapacitated? Addressing these and other end-of-life questions is more important than ever.

By Kate Ashford and Kate Ashford
April 22, 2020
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With a global pandemic sending people to the hospital and causing tens of thousands of deaths in the US to date, people are thinking about what might happen if they’re affected. Do you have an estate plan? And is it up to date? As the health crisis continues, it’s more important than ever that you get your affairs in order.

“Just the other day I received a call from an internal medical physician very concerned that he will be exposed to COVID,” Samantha Weyrauch Davis, an attorney with national law firm Hall Estill and a CPA, tells Health. “We’re seeing that particularly from people in the medical field.” 

That said, you don’t have to be a doctor to jump on this task. “I think [the need is] highlighted right now in the time that we’re living in,” says Weyrauch Davis. “But really, everyone needs these kinds of documents to protect themselves.”

Although many estate planning professionals will say that everyone over age 18 should have the full slate of estate planning documents, some are more crucial than others for younger adults. Here’s how it breaks down.

What you need once you’re an adult

At a bare minimum, once you reach the age of 18, you should have planned for incapacity. If you were in a hospital and unable to speak for yourself, who could make decisions on your behalf, and what would you want done? 

“What a lot of parents don’t realize is that once your child turns the age of majority, you may or may not have any legal decision making authority over them, depending on the state you’re in,” Sherri Stinson, an estate planning and guardianship attorney in Florida, tells Health. “Everyone needs to think about planning for health care.” 

You can accomplish this with a health care power of attorney, which designates the person (or persons) who would make health care decisions on your behalf if you can’t, and a living will or medical directive, which outlines your wishes in that situation. “Typically that looks like, if you’re terminally ill or you have an end-stage condition or you’re in a persistent vegetative state and you can’t make those decisions, what would you want to be done?” says Stinson. “What would you consider to be life-prolonging? You really need to have a handle on what you would want.” 

You may also want to add a HIPAA authorization form, which gives medical providers permission to share your medical information with whomever you name. Although the health care power of attorney in many states includes this provision, it may not go into effect until you’re deemed incapacitated, and you may want your agent to be able to discuss your records with your doctor prior to that point. 

What you need once you have assets or dependents

Beyond health care arrangements, it’s smart to have a full estate plan once you have a spouse or partner, once you have kids, or when you amass some assets that would need distribution upon your death. A full estate plan would include a will or trust, a living will or medical directive, durable financial power of attorney, health care power of attorney, and HIPAA authorization.

A will designates how your assets should be dispensed when you die, and it also allows you to state who would be the guardian of any minor children. Without this document, the state will make those decisions, which may not be in everyone’s best interest. 

A trust does many of the things a will does, but your assets will skip probate court when you die, and a trust can manage assets for you, such as a life insurance policy that you’ve left to minor children. Trusts are more expensive and are more suitable to some situations than others. A trust is useful for more complicated situations, such as when you'd like to shield your assets from your heirs' creditors or you're leaving an inheritance to someone with special needs who's collecting government benefits.

A financial power of attorney allows someone to handle financial decisions on your behalf. Make sure you tap someone trustworthy for this role. 

In all cases, make sure the people you name in your power of attorney are comfortable taking on the responsibility, and name a second (and even a third) person in the event that your first choice declines or dies. “It’s a good practice to name at least three people in each of these positions, so you don’t find yourself in a situation where the document fails completely,” says Stinson. 

How can you get that done right now?

The current challenge is that in many cities, businesses have closed offices during the pandemic, and that includes estate planning attorneys. And at a time when people are supposed to stay home and social distance themselves, putting together a properly signed, witnessed, and notarized set of estate planning documents is a real hurdle. 

“This all has to be done pursuant to law,” says Weyrauch Davis. “Remotely, we can work up documents and get documents in place, but signing is challenging particularly for witnesses because that has to be done in person.” 

Some states have altered requirements during the pandemic to make estate planning easier. In New York, New Hampshire, Connecticut, and Iowa, for instance, online notarization is possible. “You can have online notarization done with a video call,” Patrick Hicks, head of legal for online estate planning company Trust & Will, tells Health. “You hop on a Zoom call and have the notary watch you sign the document, scan the document to the notary, and they stamp it.” 

Estate planning attorneys are also doing what they can to make this process easier. “I’m scheduling clients to come to my own house where we’ll be in my backyard at my table on my deck,” says Wyrauch Davis. “Staff are making little plastic bags with sanitizer and pens for each person who signs the papers.” 

If you have a very straightforward, uncomplicated situation, you can consider an online estate planning service to create your documents—look for one that offers access to actual legal advice. But if there’s any stickiness to your family situation, you’ve got sizable assets, or you’re in a unique tax situation, it’s best to consult an estate planning attorney. (Other situations that suggest an attorney’s input: You have a blended family, a special needs loved one, you own a business, or there’s a family inheritance.) 

“Every state has certain requirements about what needs to be in the documents and how it needs to be executed,” says Stinson. “If you don’t do it right, you might as well not have done it at all.” 

Where should you keep your documents?

Your estate planning paperwork isn’t helpful to anyone if no one can find it. Experts also recommend that you don’t keep important papers in a bank safety deposit box, because loved ones may have trouble accessing it in an emergency.

If you used an attorney for the paperwork, they should have one copy, and the other should be in a safe place in your house, such as a waterproof, fireproof case. Someone dependable should know where that case is. 

Other things to keep in mind

Estate planning can be an emotional and complicated business, and once people have completed it, they often don’t look back for years. If that’s you, use this opportunity to make sure you know where your documents are and that they still reflect your wishes. You should also double-check with your named agents to make sure they’re still comfortable in that role. 

“I had a situation last year where, at the time this person had done the documents, one person she named said, ‘Yes, I’d be willing to help out,’” says Stinston. “But a year later, the lady had a job and couldn’t do it anymore.” 

How much will it cost to get everything in order? Although fees vary widely by region, expect to pay $800 to $1,800 for a full, non-complicated estate plan with an attorney. Online estate planning services tend to run $20 to $250. Notary fees are usually nominal and start as low as $1 in some states.

Finally, check the beneficiaries on accounts such as your life insurance, 401(k) and IRAs, and checking and savings accounts. Named beneficiaries trump your will, and if you opened the account years ago or your circumstances have changed (marriage, divorce, kids), your desired designations may have shifted. 

In this time of great uncertainty, an estate plan can give you great peace of mind. “If people don’t have a plan, they need to get one, because if you don’t, the state will make one for you,” says Stinson. “We can’t control COVID, but we can make sure we’ve taken steps now to put our wishes in writing.”

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