Forward Thinking Family Law Since 1994

STAYING PREPARED FROM A LEGAL STANDPOINT DURING THE COVID-19 PANDEMIC

Thus far, Michigan has been lucky in that the the number of confirmed cases of COVID-19 is relatively low compared to elsewhere.[1]  The CDC has outlined certain people who are at a higher risk for serious illness from COVID-19,[2] which include older adults (60+) and people who have serious chronic medical conditions like heart disease, diabetes, or lung disease.[3]  But the CDC has also stated it is important for all Americans to get ready for COVID-19 now.[4] One important recommendation from the CDC is to have a plan for if you get sick.[5]  While the most significant suggestion is to have a plan for your health and safety, you should also consider having a plan for what happens if you are admitted to a hospital, confined to a home or nursing home, under quarantine, or can no longer conduct business for yourself.

TWO LEGAL DOCUMENTS EVERY ADULT SHOULD HAVE

Whether you are currently healthy or not, from a legal perspective, there are two documents every adult should have: a durable power of attorney for health care and a durable power of attorney for finances.[6]  These two documents are important even without a worldwide pandemic,[7] because being prepared and having a plan for the spread of the virus should include making sure you have legally appointed agents who can assist you if you are in need of help.

  1. Durable Power of Attorney for Health Care

In Michigan, the Durable Power of Attorney for Health Care is a document that helps you to legally identify who will be able to make medical decision for you if you are unable to make the decisions for yourself.[8]  This document has other names, such as Health Care Proxy, Health Care Power of Attorney, or Medical Power of Attorney.[9]  By signing this document, you appoint a Patient Advocate, which gives that person the legal power to act on your behalf as your agent.  By law, this document only becomes effective when two doctors have declared that you can no longer make decisions for yourself.  Through the document, not only do you decide who can make decisions for you, but you also declare what decisions you want to be made and what your course of treatment should be if you become incapacitated.  This document should be customized to your specific wishes, including directives regarding removing or withdrawing life support, organ and tissue donation, do not resuscitate orders, implanting or removing medical devices, entering you into hospice care, and mental health treatment, to name a few.  

 

  1. Durable Power of Attorney for Finances

The Durable Power of Attorney for Finances is a document assigning the authority to manage your financial and business affairs to a trusted agent.[10]  This document has other names, such as a General Power of Attorney, a Durable Power of Attorney, or sometimes just “Power of Attorney.”  A Durable Power of Attorney for Finances can be effective immediately or it can be created so that it is only effective if you become incapacitated (also known as a “springing” power of attorney). The word “durable” means that the document remains in effect when you are unable to make decisions for yourself, and it is accomplished by adding a clause to the document that makes it effective even if you are later disabled or incapacitated.[11]  While it may seem like the “springing” power of attorney is the right choice for you, consider that it can only be used if two doctors have declared that you are incapacitated.  This may not be the best choice for you if you are unable to conduct business affairs for yourself not because of an incapacity, but because you are quarantined or just very sick.  Thus, if you have a durable power of attorney for finances that is effective immediately, your agent can assist you right away, even though you still have capacity.  This may be a better option for you, depending on your age, health, and other needs.  And, keep in mind that while you have capacity, you may still conduct your own financial and business affairs at the same time as your trusted agent.  In other words, it does not take away your ability to act for yourself while you have capacity.   The types of transactions your agent could assist you with include signing your checks, making your deposits for you, paying your bills, contracting for medical or other professional services, and getting insurance for you, to name a few.[12]

BE CAREFUL!  THESE ARE POWERFUL DOCUMENTS

Today, it is easy to search the internet for forms to download.  However, be very careful.  Durable Powers of Attorney for Health Care and Durable Powers of Attorney for Finances are extremely powerful documents, as they allow someone else to make major life decisions for you and to access your money.  While we have laws to punish people for stealing your money, once the money is spent, it is very unlikely you will be able to recover it—after all, the person who took it likely has no money to pay you back.  Further, forms downloaded from the internet may accomplish the opposite of what you are intending, may be a detriment to you if you need to apply for Medicaid down the road, may not be  properly witnessed or notarized, and could actually cause much more harm than good.  At the very least, speak with someone who is knowledgeable about all the pitfalls that can happen if the form does not meet the legal requirements to make it effective or to accomplish what it is intended to do.

[1] https://www.michigan.gov/coronavirus/

[2] https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html#get-ready-now

[3] https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html#get-ready-now

[4] https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html#get-ready-now (emphasis added)

[5]  https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications.html#get-ready-now

[6] https://www.forbes.com/sites/deborahljacobs/2014/08/15/two-documents-every-18-year-old-should-sign/#55035c9c6e33

[7] https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020

[8] https://www.michigan.gov/documents/dhs/DHS-Pub-0161_355320_7.pdf

[9] https://www.michigan.gov/documents/dhs/DHS-Pub-0161_355320_7.pdf

[10] https://www.michigan.gov/documents/dhs/DHS-Pub-0161_355320_7.pdf

[11] https://www.michbar.org/public_resources/probate_dpoa

[12] https://www.michbar.org/public_resources/probate_dpoa