A health crisis shines spotlight on end-of-life decisions and probate

Before proceeding, let's review the documents in question:

• The will, which directs how a decedent's estate should be disposed of and, if there are minor children, can appoint guardians for them.
• The medical power of attorney grants another person the power to make medical decisions when the person cannot make them because of illness or incapacity.
• The advance directive sets out a person's wishes about what should happen should the person be terminally ill or in a coma.
• The durable power of attorney grants another person the right to manage the property of an ill or incapacitated person until such time as the person recovers or passes away.

Each of these documents is distinct and has important ramifications. Let's run through what normally would happen should a person sicken and die and then how the coronavirus changes things.

Meet Agnes. Agnes is 92 years old. She is a widow. Her husband passed away several years ago. Agnes has all her faculties but lives in an assisted living center because she needs a little help getting around. Agnes and her husband were blessed with two children, Amelia and Liam. Amelia moved to San Francisco where she is an accountant. Liam lives in Dallas where Agnes' assisted living center is located. He works at an insurance company.

Agnes owns her house, which she rented out when she entered the assisted living facility. She also has an IRA and a bank account where she deposits her rental income and Social Security. In her will, Agnes left her estate equally to Amelia and Liam.

Agnes named Amelia as the executor of her estate. She also granted Amelia the right to make medical decisions about her during any incapacity via a medical power of attorney. Finally, she named Amelia as her agent in her durable power of attorney.

Agnes picked Amelia because Amelia is an accountant and so would find it easier than Liam to probate her estate. Besides, she already does her mother's taxes. Agnes also believed that Amelia, being older, would be better suited to make tough medical decisions about her should they become necessary. All these documents are in Agnes' fireproof lockbox in her room at the assisted living center.

One day, Agnes has a debilitating stroke. She is taken by ambulance to the hospital and is in the intensive care unit. Liam rushes to the hospital and calls Amelia to tell her what happened. Amelia hops on a plane and flies in from San Francisco, a simple act before the coronavirus. The doctors tell Amelia and Liam that Agnes is very ill and might not recover.

A day passes. Agnes gets worse. She slips into a coma. Unfortunately, the doctors' fears are realized. After three days in a coma, they tell the family there is no hope. Amelia, per the medical power of attorney, requests that her mother's treatment be discontinued other than making her as comfortable as possible. Agnes made the same request in her advance directive. The family lets her go, and Agnes passes peacefully.

After the funeral, Amelia retains a probate attorney. Amelia, through the attorney, files a petition to probate Agnes' will. Before the coronavirus, they would attend probate court where, after a brief hearing, the court appoints Amelia executor of Agnes' estate. Amelia meets with Agnes' bank officer and opens an estate account.

As time goes by, Amelia distributes most of the cash to Liam and in equal shares as directed by Agnes' will. With her brother's agreement, Amelia sells the house distributes most of the proceeds. Amelia holds back some of the money in anticipation of paying income taxes on Agnes' Social Security and rental income and the capital gains tax on the sale of her house. When all this has been done, Amelia distributes the remaining money and the estate is closed.

The coronavirus has changed some of these steps, in some ways significantly. To begin with, we should note that both San Francisco and Dallas are among the many cities that have been subject to stay-at-home orders. Moreover, only “essential” businesses have been allowed to remain open, and then only when following strict rules such as social distancing. Regardless, Amelia is determined to go see her sick mother. She puts on her face mask and heads for the airport.

Amelia gets in line for security but is stopped. Perhaps she is stopped because she is subject to the stay-at-home order. Perhaps her flight is canceled because the flight crew won't take off unless everyone is wearing a face mask. Perhaps there are more people who have tickets than space on the airplane given requirements for social distancing. Or just maybe, Amelia has a temperature and might herself be infected with the coronavirus. In any event, Amelia can't get to Dallas any time soon.

But Amelia holds her mother's medical power of attorney. She has the right to consent or not to consent to any proposed medical treatment for her mother. Even though Agnes signed an advance directive, when the hospital's attorney reviews it, the attorney sees that Agnes has given Amelia her medical power of attorney. The hospital attorney forbids any withholding of treatment. The hospital attorney's job is to protect the hospital, not Agnes. Agnes remains in a coma.

Amelia calls the hospital attorney and explains how she can't get to Dallas because of the coronavirus. The hospital attorney is sympathetic but will not accept Amelia's verbal request to let her mother die peacefully. Amelia offers to send the attorney a letter. The attorney says that might do, but the letter must be notarized. Although it might be possible to notarize such a letter electronically, neither Amelia nor the hospital is set up to do that.

Suppose the medical power of attorney named Liam as an alternate agent if Amelia were unable or unwilling to serve as agent. Ordinarily that might be helpful, but Amelia faces the same logistical problems as before to document to the hospital attorney that she is resigning as Agnes' agent.

Even though Agnes preferred Amelia to hold her medical power of attorney, when it became clear that COVID-19 poses a threat to everyone and especially to elderly people who live close together, Amelia and Liam might have suggested to Agnes that she sign a new medical power of attorney, revoking the old one. Then, if Agnes ever needed an agent to direct her medical treatment while ill or incapacitated, Liam would be available locally to do just that.

This change could be permanent, given predictions that even if the coronavirus subsides this summer, it will likely return this winter in the midst of flu season. Or once Agnes and her family felt the danger had passed, they could make a third medical power of attorney reinstating Amelia as the primary decision maker.

Amelia's use of the durable power of attorney would carry many of the same coronavirus issues as using the medical power of attorney. But the decisions to be made would not be as critical or urgent as the decisions an agent must make under a medical power of attorney. Also, in the scenario above, there was no need for Amelia to use the durable power of attorney. Had Agnes been ill for a long time before passing, and, for example, the tenants renting Agnes' house wrecked the place and had to be evicted, there would be time for Amelia to send the necessary legal documents to Dallas.

Nevertheless, the solution to the problem is the same as with the medical power of attorney. Agnes could appoint Liam as agent under a durable power of attorney, either temporarily or permanently. Everyone could agree that the siblings would consult with each other (which hopefully they would do anyway) before Liam signed anything as agent.

Retrieving the will, hiring an attorney, presenting a will for probate and opening a bank account normally require a good bit of personal interaction. In probate, the executor is expected to appear in person for a brief court hearing prior to formal appointment. Normally people opening bank accounts must be physically present, to provide identification and perhaps to provide other documentation, in this case, the court order appointing the executor. Nevertheless, some banks are opening accounts online.

But even prior to the coronavirus epidemic, lawyers, courts and others have moved toward conducting business electronically. In my home state of Texas, lawyers are required to file documents electronically. Dallas County probate courts already allowed video hearings in some circumstances and specifically allow telephonic hearings during the pandemic. The original will must be presented to the court, but this can be done by mail.

The good news about probate is that it does not have to be done immediately after death. In fact, in my state of Texas, the deadline for initiating a probate proceeding is four years after the decedent died. For these reasons, there probably would not be a need to name Liam as executor of Agnes' estate despite the coronavirus.

Let's summarize the takeaways from this discussion:

• The holder of a medical power of attorney should be local.
• It's not that important that the holder of a durable power of attorney be local.
• There's no rush for probate, and if electronic filing and remote appearances are available, it's not particularly important that the executor be local.

In short, Agnes should give serious consideration to executing a new medical power of attorney naming Liam as the person to make medical decisions for her, especially in the time of the coronavirus.