Monday, August 10, 2020
The COVID-19 pandemic has pushed a lot of people to update or complete their estate plans. Due to the COVID-19 crisis, many people are beginning to realize that their estate plans have flaws and are taking steps to improve and correct them.
Below are 7 common types of trust language in your trust documents that may need to be reconsidered given today's circumstances.
- Mental Capacity Must Be Determined by Two Licensed Physicians
- Even when things are normal, there aren't usually two physicians actively involved in a person's care. In the wake of the COVID-19 crisis, non-essential medical visits have been limited and physician's assistance is needed elsewhere.
- “Springing” Powers of Attorney
- The pandemic has given new meanings to the term "incapable" which can even refer to a person that is stuck in quarantine. Therefore, it may be smart to avoid springing powers of attorney. Springing powers of attorney "spring" into effect when your physician deems you incapable, and given the new ways you could be deemed incapable, a springing power of attorney could complicate your estate.
- Dead-End Succession Provisions
- Since the pandemic has proven that is it possible for whole families to be hit with the virus at once, it is in your best interest to make sure there are other avenues and successors for your estate to pass on, in case your whole family is impacted.
- Too Much or too Little Detail in Your Health Care Directives
- "In the pandemic, we have seen health care concerns morph, with intubation and ventilators playing roles not imagined before. For individuals with overly detailed health care directives, their guidance could end up restricting the treatment or, at minimum, confusing their agent’s decisions. "
- Overly Prescriptive Distribution Provisions
- It may also be a good idea to take a look at the parameters you have set on the distribution of your trusts. In the case of the unexpected, it may be a good idea to grant your trustee broad discretion in making distributions.
- Specific Bequest Amounts
- Given the instability of the market and the uncertainty of the economy, it is a good idea to leave a special bequest to make sure that your loved ones are taken care of before anything else is done with the money left after your passing.
- Providing for Your Communities
- The pandemic has placed great stress on our communities, so it is important to consider playing a role in the revamp of your community.
See Anna Soliman, Seven Reasons to Update Your Estate Plan Right Now , Fiduciary Trust International, July 29, 2020.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.