Elder Law Lessons from Our Pandemic Spring: Three Practical Steps to Take Now

The fall is fast approaching and, thankfully, New York has managed to reduce the rate at which Coronavirus is spreading. While the future holds some uncertainty, we can take a moment to reflect and learn from our experience this spring. Below are three practical steps that we can all take to help us prepare for whatever the future may hold.

  1. Check Your Power of Attorney for Restrictions on its Effectiveness

The pandemic revealed that it is time to re-think the “springing” Power of Attorney.  Generally, a Durable Power of Attorney grants someone (an “agent”) the authority to stand in your shoes and manage your finances.  However, a springing Power of Attorney usually requires a physician, sometimes two physicians, to certify that an individual is incapable of handling their affairs before the document becomes effective and the agent can act.  This restriction was impractical before.  During a pandemic, obtaining that documentation can be next to impossible.

Check your power of attorney to see if it requires physician certifications.  If it does, you may want to revisit this decision and consider revising your document.  Your attorney can help you evaluate your document and ensure that you are making the best choice for your circumstances.

  1. Have an Emergency Envelope

Many of our clients have a proverbial “if I die” folder tucked away in a drawer.   It generally contains a copy of their Will along with account and password information.  It’s time for something both a little less morbid and a little more practical: an “emergency envelope.”  An “emergency envelope” should be stored somewhere that is accessible as you are running out the door.  It should contain information that is critical in a health emergency, including,

  • Copies of your Health Care Proxy, any HIPAA releases and your Living Will;
  • A list of your known medical conditions;
  • A list of your medications, including over the counter drugs and supplements;
  • Your health insurance information, including copies of all cards;
  • A separate document with the phone numbers and emails of emergency contacts (including those listed in your documents, but also other important contacts like friends and clergy members); and
  • Other small but practical items like cash or a portable phone charger.

In addition to a physical envelope, it’s ideal to have this information compiled in an electronic format and saved to your mobile phone.  That way, it goes where you go.

  1. Check Your Living Will for Overly Broad Treatment Restrictions

Living Wills express your preferences for your medical treatment.  They can be used to communicate that you do not want certain treatments, like feeding tubes or intubation.  Most of these documents indicate that these treatment preferences only apply when you are in the last stages of a terminal illness or a permanent vegetative state. However, there are forms on the internet that are missing this crucial caveat and may contain blanket treatment restrictions.

In a situation where ventilators are in short supply, having a document stating that you do not want to be intubated could be problematic.  If your Living Will contains treatment restrictions, it should also clearly indicate that these restrictions apply only when there is no hope of recovery. (Assuming, of course, that is what you want!)  If you are unsure about the terms of your Living Will, consult your attorney.  It is crucial that this document accurately and clearly communicates your wishes.