Planning in Uncertain Times

The reality of COVID-19 has forced people to consider many “what-if” scenarios that were previously unthinkable. With all of the challenges faced under the recent “Pause,” and now during “New York Forward,” there has arguably never been a time more appropriate for individuals and families to ensure that their estate and long-term care planning is securely in place. For many, this presents an opportunity to review past planning, including Wills and other legal documents, including any updates that might be necessary or advisable. For many others, this may well be the first time considering these important issues.

Some questions that are often contemplated include:

• What authority or documentation should be in place for someone else to address matters for you during your lifetime, especially during a crisis?
• What issues are specific to advance directives for health care decision-making?
• What issues are specific to advance directives for personal and financial decision-making?
• What are some “best practices” to ensure that your estate planning is simple, secure, efficient, and comprehensive?
• How do you protect assets while ensuring access to quality long-term care services?

These questions are often raised individually, and sometimes in discussion with family and friends. Subsequently, they become the basis of basic consultations with estate planning and elder law attorneys. Simply stated, planning is important for different reasons at various stages in life. It also means different choices based upon personal circumstances, including marital status, family, and personal/financial issues. Planning will often focus on two issues: planning for lifetime, including incapacity; and, succession planning (for issues after death).

With many being advised during the pandemic to stay at home and others living in facilities with strict visiting restrictions, it may seem daunting for some people to address otherwise routine personal business. Additionally, everyone is being asked to observe social distancing guidance and other directives that present a very different way of life. One significant development during the pandemic has been the proliferation of the use of technology. People who never once used live video interaction have become proficient in Facetime, Zoom, and other platforms. While not ideal, we have realized that we can all get many things accomplished remotely. Facing difficult circumstances, we adapt and make things possible that were not previously possible.

Since earlier this spring in New York State, Governor Andrew M. Cuomo issued a set of Executive Orders which provided additional means of validly executing documents in light of the pandemic. First, Executive Order 202.7 provided conditions for remote notarization of documents, which are available for persons physically located in New York State. While compliance requires adherence to several conditions, including utilization of live video conference technology, many individuals have been able to successfully execute documents using this Executive Order. Second, Executive Order 202.14 provided the framework for the remote witnessing of documents, including Health Care Proxies, Powers of Attorney, Last Will and Testaments, and Trusts. Likewise, successful execution requires strict compliance with the Executive Order. However, remote witnessing has provided countless people facing significant issues in leaving their residence with the opportunity to fully address their planning needs. Each Executive Order has been extended numerous times.

The only certainty in 2020 is uncertainty. The pandemic has impacted everyone, and obviously some more than others. That being said, with the aid of technology and the support of loved ones, there are ample opportunities for any person to address their planning in a personal way. Many months into the reality of COVID-19, we know what can be successfully addressed, regardless of time or place, whether it be in the form of legal documents or in other related planning decisions. Now more than ever, “preparation” as a general concept is truly essential, and unequivocally makes a difference.