Coronavirus; "Second Wave" Ready? The Legal Document Every Adult Needs
October 14, 2020

As coronavirus continues to disrupt daily life, leaving Americans uncertain of the future, you don’t have to feel helpless during this pandemic.  In fact, now is a great time to be proactive and plan ahead should you or a loved one fall ill.  One of the most important and relatively easy things you can do is to select a healthcare agent and prepare an advance health care directive. 

What is a healthcare agent?

A healthcare agent (also referred to as a healthcare surrogate, a healthcare proxy, a medical agent, or a medical proxy) is a person you authorize in an advance health care directive or a medical power of attorney to make decisions regarding your medical care if you should become unable to communicate your wishes yourself. 

Why is it important to choose a healthcare agent now?

As of October 13th, in the United States, there are approximately 8+ million  total cases of coronavirus and nearly 220,000+ deaths.  Even if contract the virus, you will most likely have mild symptoms and recover.  However, no one knows exactly how they will be affected by the virus, or any illness for that matter, therefore it is best to plan for the worst and hope for the best.  Part of that planning is making sure someone can make healthcare decisions for you if you fall ill and are unable to make those decisions for yourself. 

Factors to Consider in Choosing Your Healthcare Agent

Healthcare agents serve an important purpose.  The person you choose will have the power to make critical healthcare decisions such as: consenting to a treatment plan; deciding whether to accept or refuse medical treatment; and which healthcare providers or hospitals to use for your care.  As a result, it is crucial to think carefully about who you appoint to this role.  Many people simply assume that their spouse or oldest child should take on this role, but these individuals may not always the best suited. 

Here are some factors to consider when selecting an agent:

1. Emotional maturity.  People handle stress differently, and not everyone is able to set aside their emotions and make level-headed decisions when someone they love is suffering.  In addition, some people are simply not assertive enough to act as a strong advocate in the face of differing opinions of other family members—or even health care providers—who suggest a treatment plan you have informed your healthcare agent you do not want.  You should appoint someone who is able to think rationally in emotionally difficult circumstances, even if that means you must look outside of your family to find the best person for the job.

2. Location/Proximity.  The person you appoint to act as your healthcare agent should be someone who lives close by and is able to act on your behalf very quickly in the event of a medical emergency or if you need your advocate to serve in that role for an extended time period.  In current times, many people might be under a mandatory or recommended stay-at-home order, or may not be available or willing to travel to another city or state.  Consider naming alternate agents to account for someone’s potential unavailability.

3. Willingness to serve.  Acting as a healthcare agent can be a time-consuming and emotionally draining job.  Make sure that the person you appoint is willing and able to set aside the time necessary to serve as your patient advocate.  Don’t just assume the person you want to be your healthcare agent is willing.  Be proactive and ask if he or she is willing to take on that role.  Keep in mind that if you are elderly, you may want to avoid naming a friend or family member who also is older, as there is a greater chance that they will experience mental or physical decline before or at the same time as you, which could impede their ability to serve as your agent when the time comes.

4. Will honor your wishes no matter what.  Your healthcare agent has a duty to make decisions on your behalf that you would have made to the extent that he or she is aware of your wishes.  This is the case even if your healthcare agent disagrees with your choices.  As a result, your healthcare agent needs to be someone who is willing to set aside his or her own opinions and wishes to carry out yours.  It may be prudent to appoint someone who has values and religious beliefs that are similar to yours to reduce the instances in which your agent’s opinions may differ significantly from yours.  DO NOT appoint anyone that you do not trust to carry out your wishes.

People You Should Not Choose

Many states have laws prohibiting certain people from acting as your healthcare agent, even if they are otherwise well-qualified to act in the role:

1. Minors.  Many states have laws expressly prohibiting a minor from being a patient advocate.  The age of majority in most states is 18.**  Some states have exceptions to this prohibition for married or emancipated minors.

2. Your health care providers.  Some states not only prohibit your health care providers from acting as your healthcare agent, but also preclude the owner, operator, or any employee of any facility in which you are a patient or resident from acting in that role.  Some states that have adopted this prohibition make an exception for individuals who are related to you.  A few states, such as Kansas, Missouri, and Kentucky, also have an exception if that person is an active member of the same religious organization as you.

Advance health care directives may be among the most important legal documents you prepare—especially in light of the current pandemic.  Picking a healthcare agent can be tricky and you should think through your choice carefully. 


We can help guide you through the process of choosing a healthcare agent and assist with any of your other estate planning needs—whether you need to create or update a financial power of attorney, last will and testament, or a trust.  Give us a call today to discuss how we can help you and your family be prepared and maintain some peace of mind.

** The age of majority in Alabama and Nebraska is 19 and in Mississippi the age of majority is 21.

Estate Planning: An Overview

February 15, 2023
Estate planning entails preparing your affairs for the future, including death and other life events. While older adults might give more thought to estate planning, it is an essential tool at any age. WHY IT’S IMPORTANT With estate planning, individuals and families can protect their interests during incapacity or after death. You can provide for a spouse, children, and dependent family members when you pass away. You can arrange your care and financial affairs should you suffer a severe accident or illness that renders you incapacitated. If you are a parent, you can appoint a guardian to care for and manage the inheritance of your minor children. If you own a business, you can prepare to transfer it to family members, colleagues, or other trusted individuals. You can make arrangements for your long-term care when you can no longer live on your own. You can also make funeral preparations, determine what happens to your body when you pass, and prepay for your funeral, all of which can help lessen the burden on your family members. WHAT IS AN ESTATE? Legacy planning entails passing on your estate. Your estate is everything you own, including: Savings and checking accounts Retirement accounts Investments Life insurance Annuities Houses and other real estate Cars Personal possessions, such as jewelry, furniture, and sentimental items When you die, your estate encompasses all your property upon death. If you sold or gave away property before death, it is no longer part of your estate, and you cannot transfer it upon death. Items you own with another person are also part of your estate. Depending on the type of asset, it might automatically pass to the other owner. For instance, if you own a home with your spouse as tenants by the entirety, it will pass to your spouse upon your death. WHAT IS AN ESTATE PLAN? An estate plan consists of legal documents and arrangements that determine the distribution of your assets when you die or outline your care if you become incapacitated. While a will can be a central component of an estate plan, a solid plan encompasses more than a will. It can also include legal tools that allow assets to pass outside of a will and probate (the process by which a court oversees the distribution of assets in a will). ESTATE PLANNING TOOLS In addition to your will, your estate plan could include the following: Purchasing jointly owned property or adding a joint owner to your property Designating a beneficiary on a pay-on-death bank account, retirement account, or annuity Buying life insurance to benefit your family should you pass away Creating a trust for a child Obtaining long-term care insurance to cover future nursing home or assisted living fees Executing power of attorney documents, naming health care and financial agents Making a living will, providing instructions for care should you become incapacitated Preparing a transfer on death instrument to pass ownership of your property to a beneficiary upon death WHAT IS AN ESTATE PLANNER? As professionals helping people make future arrangements, estate planners are attorneys who focus on end-of-life preparations. Estate planning attorneys assist people with drafting legal documents and understanding laws and taxes that could affect them and the loved ones they will leave behind. When creating estate plans, individuals may need to consult attorneys as well as other experts, including financial planners, accountants, life insurance advisors, bankers, and real estate brokers. WHAT DOES THE FINAL DISTRIBUTION OF ASSETS INVOLVE? The final distribution of assets is a conclusory step in the probate process before the court closes probate. When an estate goes through probate, the personal representative or executor must satisfy all debts, and the court must resolve all disputes before allowing the beneficiaries to receive the assets. At the end of the probate process, ownership of the assets of the estate is transferred to the beneficiaries. DO I NEED A LAWYER FOR ESTATE PLANNING? Although the law does not require that individuals secure legal representation to make estate plans, many find the support and guidance of estate planning attorneys invaluable. An estate planning attorney can help you identify the legal tools and strategies that suit your needs, as well as draft the necessary documents, such as wills, trusts, and powers of attorney. In addition to addressing tax concerns and drafting documents, these attorneys can help you avoid probate. Probate, the process by which the court oversees the distribution of assets in a will, can be expensive and time-consuming for surviving family members. It also opens the door for disgruntled people to challenge the validity of the testamentary document, further complicating asset distribution. An estate planning attorney could help you organize your assets to transfer outside of probate to make the transfers simpler, easier, and less vulnerable to challenges. When you are ready to create an estate plan, contact Jayde Law PLLC.

Three Things to Know About Being an Executor

February 1, 2023
An executor (or personal representative) is a person or entity you choose to carry out your last wishes outlined in your will. Your executor should be someone you trust is responsible enough to manage your estate after you pass away. Choosing an executor is a big decision when it comes to estate planning. So, what should you know about an executor? What should you consider before naming an executor? Here are answers to three common questions about executors. Can an Executor Decide Who Gets What? No. In most circumstances, an executor cannot decide who gets what property. Executors are responsible for carrying out the decedent’s wishes as outlined in the will. However, if the decedent did not distribute all their assets in their will, in some circumstances, the executor may be able to decide how to distribute the unassigned property. Can an Executor of a Will Be a Beneficiary? Yes. An executor can also be a beneficiary of the will. It is common for people to have their surviving spouse or children act as the executor of their estate. This choice can be cost-effective if you have a small or simple estate. Another benefit of having a family member act as the executor of your estate is they are familiar with your wishes. They know you, and they understand how you want your assets divided. If you forget to state where property goes in your will, an executor that knows you well is more likely to give those assets to the correct beneficiaries. How Long Does the Executor Have to Pay the Beneficiaries? The short answer is: It depends. The executor should work diligently to get each beneficiary paid as soon as possible. While the executor is responsible for ensuring beneficiaries receive the money or property they were left in the will, the probate process may delay beneficiaries from receiving a payout. Depending on the size of the estate and the debts and taxes the estate owes, it may take anywhere from six months to more than one year for a beneficiary to receive an inheritance. The probate process varies depending on the state, but the typical process goes like this: Submit the Will for Probate — Part of the executor’s responsibility to the estate is to file the will with the probate court. Filing the will begins the probate process. Once completed, the beneficiaries are one step closer to receiving their inheritance. The time executors have to file a will with the probate court varies by state. File an Inventory — An inventory of estate assets is required. As part of an inventory, the executor determines the total value of all estate property, money, and other assets. A completed inventory can then be used by the executor to determine whether federal or state taxes apply, or whether assets will be used to settle debts. Pay Taxes and Debts — Before the executor can distribute any assets to beneficiaries, estate debts and taxes must be paid. The executor is responsible for ensuring these payments are made. Creating a complete estate plan can be overwhelming. With the help of an experienced estate planning attorney, you can ease some of the anxieties you may be facing in thinking about estate planning. If you are ready to start the estate planning process give Jayde Law PLLC a call..