One of the risks posed by the coronavirus (Covid-19) is the potential incapacity (even if only temporary) of anyone infected by the virus. Elders and individuals with serious underlying health conditions are especially in peril. This real-life risk reinforces the need for every adult to have in place both an advance health care directive and durable financial power of attorney. These legal documents designate your agents to make your health care decisions and manage your finances if you become incapacitated, even temporarily.
At The Law Office of Henry Nash, we share all the concerns of individuals and families in navigating through this unprecedented time. Rockville, Maryland attorney Henry Nash continues to assist existing and new clients and their families. If you need help with an advance health care directive, durable financial power of attorney, or another legal concern, we encourage you to contact us by phone or through our online form.
An advance health care directive is a legal document authorized and governed by a Maryland law called the Health Care Decisions Act. The directive includes a durable health care power of attorney, in which you designate a person of your choosing to make health care decisions for you in the event you become incapacitated. That person is your health care agent or surrogate decision maker. Your directive also includes your wishes about treatment, including life-sustaining options, so that your agent can implement your own wishes.
If you do not have an advance directive or durable health care power of attorney, a Maryland law authorizes specific family members to act on your behalf as surrogate decision maker, in an order of priority. However, leaving health care decisions up to your family under that law involves a number of risks.
Statutory surrogates of equal rank (such as your children) have equal standing under the law. Your surrogates may disagree on matters involving your health care or have different understandings about your own wishes. Ultimately, a disagreement could end up in probate court, with a judge deciding who will make your decisions in a proceeding for appointment of a guardian of the person.
The only way to avoid the risk of potential disputes among statutory surrogates — and to ensure that your exact wishes are known to your health care agent and implemented — is to execute an advance health care directive. Your directive also enables you to choose the person who will make your decisions if you become incapacitated, rather than having the statute or a judge decide who makes them.
You should never use a form or on-line service to create your directive. The only way to make certain that your advance directive is valid in Maryland and addresses all essential issues is to talk with an experienced estate planning lawyer. When you create an advance directive, you must make several important decisions. Your attorney explains those decisions and assists you in addressing all aspects of the directive, to ensure that your directive is complete and valid.
In a durable financial power of attorney, you designate an individual of your choosing to manage your financial affairs in the event you become incapacitated. Your agent can pay your bills and tend to all the financial matters that you normally take care of in your daily life. In the document, you specify exactly what authority your agent will have. If you do not have a durable financial power of attorney in place, a family member may have to petition the probate court to be appointed as a guardian of the property for you.
If you have a revocable living trust created with the assistance of an experienced attorney, your trust may alleviate the need for a durable financial power of attorney. But the terms of the trust must be properly drafted for that to be the case. In some situations, a revocable living trust provides better protection than a durable financial power of attorney. If you want to learn more about living trusts and consider including one in your estate plan, it’s essential to consult with a knowledgeable lawyer.
Having a valid advance health care directive and durable financial power of attorney (or living trust) is important under any circumstances. But with the significant risks posed by Covid-19, it is extremely important for every adult to make certain they have these legal documents in place now. This precaution is particularly important for elders and other vulnerable individuals, who are at greater risk if they are infected by Covid-19.
If you don’t have these documents, you should talk with an experienced estate planning attorney as soon as possible and take the necessary steps to create an advance health care directive and durable financial power of attorney. In most cases, putting the documents in place is not complicated or time-consuming.
Rockville, Maryland attorney Henry Nash has extensive experience helping individuals, including elders and their families, work through the complex laws and concerns inherent in all types of elder law and estate planning matters. He assists clients with advance health care directives and durable financial powers of attorney, as well as guardianships, living trusts, and other related matters.
At The Law Office of Henry Nash, we are available to assist clients in Rockville, throughout Montgomery County, and elsewhere in Maryland. We also help out-of-state clients who have loved ones residing in the state. If you have any questions or concerns about any issues relating to any of our services, we welcome you to call us at (301) 998-6111 or contact us through our online form.