Greetings all. If you are stuck at home and without basic legal documents, read on. In the spirit of offering what I can to help people gain some piece of mind amidst the panic and uncertainty of the pandemic, here are some resources that you can use to get the basics in order, for now.
As I write this, roughly 1/4 of Americans are being asked to shelter at home in an effort to flatten the infection curve of the COVID-19 virus. I know that this is a scary time, and that many people have suddenly realized that they need basic estate planning documents, just in case they get sick.
Although none of the documents I’m about to suggest take the place of a comprehensive estate plan, they are all good things to have. And most of them are documents that you can put in place with minimal or no expense as long as you have access to the internet, a printer, and some cooperative neighbors willing to stay six feet away while you sign them. Once you do sign them, place them in a safe place, let your loved ones know where to find them in case you do get sick, and then, please, go out and take a walk.
Advance Health Care Directives
An Advance Health Care Directive, also known as a Health Care Proxy or Durable Power of Attorney for Health Care and Living Will in some states, appoints people to act as your Agents to make medical decisions for you if you are unable to make them for yourself. If, for example, you are unconscious or too ill or confused by heavy medication to understand the consequences of a medical decision, your Agents can make them on your behalf. Advance Directives also allow you to state your wishes for end-of-life care, such as whether or not to prolong your life by artificial means. In the current pandemic, this may mean whether or not to use a ventilator to enable you to breathe; in other situations it may mean using artificial nutrition or hydration. For that decision, your Agent is supposed to act to carry out your stated wishes, not substitute their own. Advance Directives also allow you to state your wishes for relief from pain and access to palliative care and organ donation.
Here is a downloadable Advance Health Care Directive form for California that follows the California Probate Code’s statutory form.
The AARP offers free, downloadable Advance Directives for all fifty states here:
The California Hospital Association offers a free downloadable form for California here.
If you are a Kaiser member, Kaiser Permanente offers a downloadable form here.
If you would like to learn more about end of life planning and palliative care, please listen to Dr. Jessica Zitter’s interview on my podcast, Life Death Law. She has so much to say about how to be prepared, who to choose as your Agent, and how to negotiate a vist to the ICU.
DNR and POLST forms
A DNR Order tells emergency medical personnel that you don’t want CPR or other measures, such as intubation, if your heart stops beating. DNR Orders are used both in hospital settings and at home, in case EMT’s come to your house on an emergency call. In some states, these are called by different names, such as “Comfort One” or “DNR Form.” If you have a terminal illness, strong negative feelings about CPR, or feel at particular risk for cardiac or respiratory arrest, you may want to have a DNR Order in your medical file and on your refrigerator. This form, however, needs to be signed by a doctor to be valid, so it’s not exactly a DIY resource. Still, if you are concerned, please do contact your doctor or local Health Department to find out how to get this in place.
A POLST form, which is often printed on bright pink paper, is another medical order that is similar to, but broader than, a DNR Order. The name stands for Physician Orders for Life-Sustaining Treatment and it is exactly that — a medically binding order that states what you do, and don’t, want at end of life. A POLST form goes into more detail about end of life treatment, including the use of antibiotics, feeding tubes, and other life-sustaining measures. If you are concerned about being hospitalized and want your medical wishes to be clear and binding upon your treating physicians, please discuss this with your doctor as well.
For more information about POLST forms, you can go here.
Durable Power of Attorney
A Durable Power of Attorney is a legal document that names Agents who can act for you financially, doing things such as writing checks on your behalf, paying your bills, managing your investments, withdrawing assets from your retirement accounts, and paying your taxes. There are two kinds of Durable Powers of Attorney: those that are effective upon signing and those that are effective only when you are incapacitated (called “Springing Durable Powers of Attorney”). If you want your trusted Agents to be able to act for you now, an immediately effective Power of Attorney is appropriate. If you want your Agent only to act for you when, and if, you are incapacitated, then a Springing Durable Power of Attorney is the right one for you.
California offers a simple Durable Power of Attorney as part of its Probate Code. You can find this many places, but here’s one link.
A Will is the last on my list of basic estate documents that everyone should have. If you don’t write one, each state has a set of rules that will determine who will get your property at death (called the laws of intestate succession) and a judge will have to appoint guardians for your minor children without any input from you. Not all of your property will pass via your Will upon your death — assets with beneficiary designations, most often retirement accounts and life insurance policies, but also sometimes bank and brokerage accounts, will be paid out directly to your named beneficiaries.
So, how can you make a Will right now, if you can’t leave the house? I have three suggestions:
- If you live in California, you can download a simple fill-in-the-blank form offered for free by the State Bar Association here.
- If you want to do a more customized Will, and you can afford to pay 89.99, you can use WillMaker, software that uses a question and answer format to produce Wills, Durable Powers of Attorney and Health Care Directives for all states, except Louisiana. You can download Quicken WillMaker and Trust 2020.
- You can create an Online Will for $59.99 at Nolo.com for all states except Louisana.
There are, of course, other online providers of legal documents, such as LegalZoom, but I have written for Nolo for the last 20 years, and am most familiar with their documents and their internal editing process.
So, good luck, be healthy, and put the basics in place.