April 21, 2020 11:15 am
Your lawyers at Mountain Dearborn hope that you and yours are staying safe and well. We continue to serve our clients remotely by holding virtual meetings, drafting estate planning documents, and e-filing probate forms. We are also e-filing estate and fiduciary income tax returns.
Taking a page from the film Silver Linings Playbook, this month we share a few ideas for how to take advantage of shelter-at-home downtime, as well as answer your most pressing estate planning questions.
The Silver Linings
1. Reflect on what’s really important to you during this slow-down. Find a personal lesson to carry into the future. Do you wish to spend more time with your children? Do you want to be more present in your interactions? Do you finally want to pursue a new career?
2. Consider how you might make better financial decisions. Staying at home, you may notice your bank account getting larger and find that life is actually fine without unnecessary purchases. Consider using this experience to get into a habit of saving money each week for a rainy day because, clearly, anything can happen.
3. Practice more gratitude in your relationships. In the past month, I realized that, despite how attached we are to social media and our smart phones, there is no substitute for a friend’s or loved one’s physical company. Moving forward, I will be less likely to use my phone when I am with friends or family.
4. Invest in your health. Strengthen your body’s immunity and reverse the reversible with exercise and diet changes. Practice physical distancing if you’re walking or jogging in a city, and enjoy the great outdoors wherever you live. Exercising need not be strenuous to make a difference; studies have shown that walking for just 20 minutes can improve your heart health and give you a welcomed endorphin boost.
5. Now is the time to . . . finally finish that book, home project, make those phone calls, or start that passion project. Use this rare downtime to start or finish what is left undone.
Speaking of undone . . .
In the midst of “stay at home” advisories, and with the pandemic touching all too many more lives, everyone has had more time to think about estate plans, health care proxies, or tax circumstances. Here are answers to questions we are hearing most often:
1. We just received drafts of our estate planning documents that you sent for review. How do we sign and still practice social distancing?
Good question, and the answer has two parts:
Your will must be signed in the presence of two witnesses. Massachusetts does not recognize virtual will signings— yet. Furthermore, the witnesses sign a notarized statement attesting to what they just witnessed.
Due to COVID-19, proposed state legislation called “An Act Relative to Remote Notarization during COVID-19 State of Emergency” is being considered by the Massachusetts General Court. If the bill, intended as a temporary measure during the pandemic, is passed and signed into law, estate planning attorneys in the Commonwealth will be able to preside over will signings using video conferencing, and documents may be notarized remotely. We will keep you updated on the progress of this legislation.
2. If a doctor declares I will be in a permanent vegetative state, I do not want measures that prolong my dying. But what is meant by short-term ventilation?
An advance directive, such as the one mentioned here, is included in the health care proxies that we draft for clients. A health care proxy is a document that allows you to name someone to make health care decisions on your behalf in the event you cannot communicate them for yourself. Due to COVID-19, there are new issues regarding advance directives, including the implications of short-term ventilation. Sometimes a patient needs help breathing for a limited time, such as during cardiac arrest, overdose, or after anesthesia for surgery. Some people do not want to be intubated and put on a ventilator, but agree to a short trial of a bag or CPAP unit (a non-invasive device that provides constant, steady air pressure), so you can specify those details as advance directives.
For those who are young and healthy, you may want ventilation or intubation, whereas for the chronically ill or terminally ill, such measure may prolong suffering. Consider talking to your doctor about these advance directives before including them in a health care proxy. Now more than ever, we are seeing just how important this document is. The health care proxy is your chance to prove your wishes for medical care during a time when you cannot communicate them.
3. What is the difference between a health care proxy and MOLST form?
A health care proxy is a legal document that identifies who can make medical decisions for you if you are unable to speak for yourself; a MOLST (Medical Orders for Life-Sustaining Treatment) is a medical document specifying immediate medical orders for life-sustaining treatments designed to improve the quality of care for near-death patients.
The MOLST form is often completed after long discussions with the patient (or his or her health care agent), doctor, and other medical team. A doctor or nurse practitioner completes the form, but starting in June 2020, a MOLST may be completed by a physician’s assistant. Here is a great resource to learn more about MOLSTs, along with COVID-19 guidance. Click here for Massachusetts MOLST resources.
4. My spouse and I were rarely concerned about a simultaneous death, but we are now, and we have young children. How can we protect them?
First, think about who will take care of your children (referred to as a guardian and conservator) and your children’s inherited assets. A guardian takes care of the personal and medical needs of your child, while a conservator takes care of the finances. You may name the same person for both roles, but it is not required.
When your child turns 18, the guardianship terminates and the conservator must hand off your child’s assets to him or her. That is why you should think about creating a “stand-by” family trust, which holds your child’s inheritance in trust until your child reaches a specified age. A trust is more flexible and can often preserve your assets for your children over a longer period of time.
5. Thanks to the CARES Act, I don’t have to pay my student loans until September 30, 2020. But if I keep up my regular payments, I won’t have to pay interest during this period (a big advantage since some loan interest rates are as high as 7 percent). Should I wait or keep paying on schedule?
This is a golden opportunity to pay down your loans faster if you choose long-term over short-term gratification.
You may want to resist the temptation to defer loan payments. As noted, the interest rate for eligible federal student loans will be set at zero percent until the end of September. If you can afford it, continue your monthly habit of making a loan payment. With no interest accrual, this is a great time to make a big dent in the principal balance of your loan. Then, when interest rates go back into effect, you will pay less interest because the interest will accrue on a smaller balance.
As we face this pandemic together, remember that you are not stuck at home—you are safe at home!
We hope that you and your family stay safe and healthy. If you have any estate planning questions, please call Attorney Nina Dow at (508) 453-6276, or Attorney Ann Molloy at (508) 459-7268.
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