With Deb E. Guston, Esq.
The threat of COVID-19 has been an ever-present thought on the minds of people around the world as the virus persists and the world has scrambled to shift to social distancing and remote operations. A topic that may be a pressing concern for many, and that may not cross the minds of others but is important for all to consider, is ensuring that you and your family are prepared if the virus does affect you. Our paralegal Lori, who is herself a parent to two daughters, interviewed Deb Guston, a New Jersey family law attorney with expertise in estate planning and guardianship matters, to offer some insight:
Question: Considering “The Big 3,” health care proxies, Power of Attorney, and wills & estate plans, what are big concerns if parents don’t have these in place? If parents are separated but not yet divorced, would the parent’s estate go to the estranged spouse and not to the child? If guardians are not named, how would a judge choose a guardian?
Answer: Under NJ law, if a parent with legal custody dies without a will appointing a guardian, custody does not automatically vest in the other parent, unless there is a joint legal and physical custody order. Not having a will naming the other parent as the guardian can cause disputes between the other parent and other relatives. If there is no appointed guardian in a will and no preexisting custodial order, the Family Court would have to hold a hearing to determine the best interests of the child.
Being in an intact marriage does not give people the automatic right to authorize the termination of medical treatment or experimental treatment, nor does it give a spouse the right to obtain medical records or to conduct financial transactions in respect to accounts that are not jointly held. Only a Power of Attorney and Advance Medical Directive can create those authorizations, so whether in an intact relationship or not, these documents are important.
Question: Are there any unique situations that COVID-19 raises that should be addressed? Are there any concerns raised for estate planning due to potentially large hospital bills against the estate?
Answer: Under NJ law, a spouse can be held responsible for the reasonable medical care of their spouse [this includes civil union partners] to the extent that the ill spouse does not have sufficient sole assets with which to pay. COVID issues can arise especially if the government does not clarify if all COVID treatment will be paid for by the government, or if this will be left to the patient and their insurance company, Medicare or Medicaid. At present, all the federal government has agreed to pay for is COVID testing.
Question: What are added complexities or concerns for LGBTQ families? Blended families?
Answer: People can fall ill anywhere and so all LGBTQ families need documents to secure their spouse or partner’s authority in medical and financial decision making. For blended families, it is especially important to make sure that the lines of authority are clear to prevent arguments or legal battles between family members, romantic partners and over children in multi-parent families. In polyamorous families, there can be times when only a legal spouse or legal partner can be involved. If a person does not want their legal spouse/partner to have authority, they need to make documents to designate the appropriate person.
Question: Can parents complete any of these documents on their own or remotely? Can attorneys execute wills remotely? Are any forms of emergency wills (e.g., holographic) recognized in New Jersey?
Answer: The only document under NJ law that does not require a notary is a Living Will/Advance Directive. That document can be executed and enforceable with two witnesses, but those witness cannot be a treating doctor or close family member who may inherit from the signer. Wills and Powers of Attorney require a notary. At the present time, NJ has authorized remote notarization, but only for the duration of the COVID crisis, so it should be possible to find a notary while still complying with the stay-at-home directions. Most attorneys who do estate planning have come up with creative ways to allow client to sign their documents in a safe fashion while adhering to all of the laws that make these documents enforceable.
Using internet generated forms can create big problems. Sometimes they just don’t comply with NJ law and will be unenforceable. Often times people don’t have them executed properly and they cannot be enforced. Also, having someone who is very sick sign a will or other documents a relative or friend has pulled from the internet can raise issues of undue influence and lack of capacity that can create disputes and litigation after a person has died. Using an experienced attorney will assure your documents are done properly and can be enforced
Question: Are there any other arrangements to consider?
Answer: It may be hard right now, but banks and other financial institutions usually have their own forms of powers of attorney and they like customers to have those signed as well. You can ask your banks and fund managers to send you the proper forms and get them signed and notarized when you can. This avoids your agent the trouble of having your general power of attorney reviewed by a bank attorney or other questions about their authority.
Anytime you are thinking about your estate planning, you should review all of the beneficiary designations on life insurance policies and retirement accounts. Those are contracts between you the insurance company or plan administrator. If a person dies and, for example, an ex is named as the beneficiary – that’s where the money is going, even if the deceased was married or had children.
Thank you so much to Attorney Deb Guston for volunteering her time for this question and answer session to help spread awareness about these preparedness considerations during this uncertain and stressful time. If you need help with any of the above referenced legal services, you can reach Deb at firstname.lastname@example.org.
Keep an eye out for Part 2 of this question and answer series, which will explore parents’ legal rights in the event that your child is hospitalized.