With the COVID-19 pandemic bringing the reality of death to the forefront of our minds, estate planning attorneys are getting a steady stream of calls from clients looking to put their affairs in order. We spoke with two Chattanooga attorneys to find out everything you need to know about wills, medical directives and powers of attorney.
What forms do I need?
Estate attorney John R. Buhrman of Buhrman Law Firm said he recommends all his clients have four basic documents, regardless of their financial situation.
The first is a living will, aka an advance directive, which lets medical professionals and your family know your wishes regarding which treatments you want to receive or refuse if you are permanently incapacitated.
The two most important things you can do are to name a power of attorney for your health care and a power of attorney for your finances, who can make decisions pertaining to those things if you're unable to make them for yourself, Buhrman said. If you don't choose someone to take care of these decisions, your family will have to go to court to name a conservator — which is a costly and time-consuming process.
You also need a last will, which states who will inherit your assets when you die. You need to name an executor of the will, as your powers of attorney can only serve as your agent while you are still alive, he said.
What do I need to consider when choosing powers of attorney?
For both your health care and financial powers of attorney, Buhrman always tells his clients to name one primary agent and at least one backup. It's fine to choose the same person for both, but you want to consider what type of person they are and whether they can handle the task, he said. For example, someone who is easily overwhelmed by paperwork probably would not be the best choice for a financial power of attorney. The main questions he suggests people ask themselves when choosing powers of attorney are "Do you trust them?" and "Do they have a good head on their shoulders?"
What do I do with my documents?
All these documents are useless if no one knows they exist, so Buhrman tells his clients to make copies for your primary agent and backups for both your health care and financial powers of attorney. You can give a copy of your living will and health care power of attorney to your primary care physician, but depending on which hospital you end up in, other medical professionals may not be able to access it. Your safest bet is to make copies for the people you want to make those decisions, he said. Buhrman said he scanned his documents and keeps them in a Dropbox file in his phone so he always has them handy.
Who needs to be there when I sign the documents, and how is that handled during the coronavirus outbreak?
Requirements for signatures vary depending on the state.
You need two witnesses present for the signing of a last will in Tennessee and Georgia. In Tennessee, to avoid having to call the witnesses to prove the will at the person's death, the witnesses can sign an affidavit before a notary, according to attorney Peter Harrison of Trailhead Estate Planning.
Tennessee and Georgia have both combined the content of their medical directive and medical power of attorney forms into a single form, the Advance Directive for Health Care.
Tennessee's Advance Directive for Health Care requires a notary and/or two witnesses, including one competent adult who is not the agent and at least one witness who is not related by blood, marriage or adoption, according to the Tennessee Department of Health.
Two witnesses — who cannot be your primary or secondary agents, someone who would knowingly inherit something from you or benefit financially from your death, or someone directly involved in your health care — are required for Georgia's Advance Directive for Health Care. The witnesses don't have to be together or present with you when you sign, and you don't need a notary, the form states.
Buhrman said he is still doing in-person signings despite the coronavirus outbreak, and he is willing to go to a client's home if necessary rather than have them come into his office.
Harrison said he now has a client in the hospital, and he is still waiting to find out if hospital officials will allow the client's two witnesses and notary inside. "It's a challenge, and we're trying to figure that out," he said, adding that most hospitals will not allow staff to serve as witnesses.
He's recommending clients who aren't in dire straits hold off on creating documents that require multiple in-person witnesses.
If my college-age kid gets sick, can I make decisions for them if they are incapacitated?
If your child is 18, they would need to name you as their health care power of attorney if they want you to be able to make decisions for them in the event they are unable to do so. "It leads to some uncomfortable decisions, but when I have clients with children of that age, I recommend [the adult children] have their own advance directive and power of attorney," said Harrison.
Do I need an attorney?
Not all of these documents need to be prepared by an attorney. You can download the Advance Directive for Health Care for Tennessee and Georgia to fill out yourself, but Harrison recommends talking to an attorney if you have questions to make sure you understand what everything on the form means.
Contact Emily Crisman at firstname.lastname@example.org or 423-757-6508.