Fiduciary Planning in the era of COVID-19

By now, most have had their fill of news regarding COVID-19 and it’s continued impact on communities around the world. Given the uncertainty in the new “normal” now, more than ever, is an ideal time to begin planning for your estate.

What happens when someone is hospitalized and unable to make decisions medical decisions for themselves. Who can talk to doctors and receive medical information when tough decisions need to be made? How do individuals ensure that bills are paid and the lights stay on at home when they do not have the ability or capacity to handle such matters? Who will have access to medical information when you are in the hospital and unable to give consent? Although not a topic that any of us want to address or even think about, designating our “spokesperson” is a vital task that is painfully clear during the COVID19 Pandemic.

All estate plans should include three core documents: A Durable Power of Attorney, A Designation of Patient Advocate (Health Care Proxy, Advanced Healthcare Directive, or similar document in other states), and a HIPPA Release. Most states, including Michigan, provide that in the absence of a designate patient advocate, the State has an obligation to ensure the survival of the patient at all costs. As hospitals have inundated with coronavirus patients, however, the discussion surrounding ensuring the survival of patients has become more nuanced as hospitals around the country are considering Do Not Resuscitate Orders for all coronavirus patients.

In Michigan, an individual over the age of 18 can designate another person who is over the age of 18 to make medical decisions in the event they are “incapacitated,” as defined by under Michigan law. By nominating a patient advocate, individuals are able to re-take control of their medical decisions by nominating a spouse, family-member, or friend to act in their stead rather than leave the ultimate medical decisions to medical professionals. Under Michigan law, it is important to note that a patient advocate designation only become active, thereby allowing the agent to make decisions, when the principal is deemed incapacitated.

The second document that should be included in all estate plans is a HIPPA Release. Enacted in 1996, the Health Information Patient Protection Act (“HIPPA”) provides limitations on what information medical professionals can provide to third-parties without a patient’s consent. Under Michigan law, a hospital can disclose medical records to a patient’s “Authorized representative.” As defined in the statute, an authorized representative is “[a] person designated by the patient to access the patient’s medical records. HIPPA allows certain certain entities to provide medical information to spouses and other family members, so long as the patient provides, at a minimum, verbal permission to the medical provider to release the information. What happens if the patient is incapacitated, or is no longer verbal? Through the use of an “Authorization to Release Medical Records” or, alternatively, a HIPPA release, patients can designate friends, family or other third-parties that they wish their medical information can be given to. A HIPPA release can provide peace of mind that a spouse or other family members can easily access medical information to make decisions and keep family in the loop.

A final document that can be useful to individuals is a “Power of Attorney.” While there is a lot of variability with the various types of powers of attorney’s available to individuals, the most commonly used is called a “Durable Power Of Attorney.” A Durable Power of Attorney is a lifetime power that permits a designated individual to handle your financial matters even after you are no longer “competent” under the law. Through a Power of Attorney, your agent has the ability to sign your checks, make deposits for you, pay your bills, obtain insurance, and do any of the things you do to manage your everyday affairs.

The pandemic provides the opportunity for each of us to begin planning for our future in ways that many of us often do not consider. While no day is certain, tomorrow is coming whether we want it to or not, which is why there is no better time that today to begin considering