Legal preparedness for a dangerous time
Let’s get a few things down on paper while we can.
A worsening public health emergency is no time to be without a will, health care advance directive, or legally solid plan for the care of your children in an emergency. This is not just about what happens to your possessions when you die, but deciding who will have your back if the worst things happen, and equipping those people with the legal authority they will need to act when you can’t.
These can be hard questions to raise, let alone answer: who will take care of your minor kids if calamity strikes, and how will they be supported? What happens to your business, your client or patient files, your employees, etc.? Does your business continue or shut down? Who will make decisions for you if you die or become disabled, whether business decisions, financial decisions, or decisions about your health and health care?
The materials here are meant to help make these questions easier to ask, answer, and document.
COVID-19 EMERGENCY LEGAL PLANNING RESOURCES and SERVICES
The forms and other resources posted here are free for anyone to use, with the understanding that they are not guaranteed to be appropriate for your circumstances, complete, or error-free. No attorney-client relationship is established by my sharing these forms or by anyone using them. I strongly recommend consulting an attorney (me or someone else) before executing these documents.
I also recommend getting these in place as soon as possible.
My services
While anyone is free to use these materials as they see fit, including filling them out yourself or using them to prepare to work with another attorney, I am of course available to advise and assist Maine residents in preparing and executing these documents. For legal advice/consultation via email, phone, or video conference, and/or assistance preparing and executing the form documents below, I am making my services available on a pay-what-you-can basis. These basic protections have become essential for all of us to have, precisely when so many of us have been laid off, had hours reduced, or been forced to close up shop.
If you would prefer to work with me to prepare a customized estate plan, or if your circumstances call for more complex or specialized treatment than these forms provide, I am of course happy to provide full representation at my normal professional rates, which may be paid up front or in installments over whatever reasonable period works for you. (Initial consultations to assess the appropriate type and level of service needed will be pay-what-you-can.)
Let me clarify what I mean by pay-what-you-can:
I will provide specific legal services on a limited engagement agreement. You pay me what you can afford at the time of service, either in advance or at the conclusion, or both. If you want to know what the normal fee would be, I’ll tell you, but only if you ask. I will never ask you to explain or justify the amount you choose to pay, and no one will ever try to collect a penny more from you than that. Any costs such as postage, printing of documents longer than a page or two, and any other third-party expenses that might be incurred, shall be your responsibility.
Let’s work together to do a couple of smart things while we keep our families safe.
Let’s get started.
Follow the links below to jump to each topic and related resources. There will also be commentary on these topics in a series of related blog posts, available here.
ESTATE PLANNING REVIEW - Use this form to gather and organize estate planning information.
Health Care Advance Directive
Health Care Advance Directive -- Fillable Form (via Adobe DC)
More advance directive resources over on our Resources page.
This is the obvious place to start.
You have the right to make decisions about your own health care, and to appoint someone to make decisions for you if and when you can’t. Maine has adopted the Uniform Health Care Decisions Act, which consolidates a few different approaches to this basic ideas into one statute and a corresponding form. The link above is to my own version, but there are others that do the same thing, including the statutory form (see “Optional form” at 18-C §5-805).
My version is a mashup of the optional form from the statute and the excellent version issued by MaineHealth, with a few small changes of my own. This document does a few different but related things, all of which have to do with the medical care you do and don’t want to receive if you become too sick to make or communicate such decisions yourself.
The first thing it does is let you appoint an agent who is authorized to make health care decisions for you. This is by far the best option if you have someone you can trust to act in your best interest. Make sure that person knows and accepts that role, and knows what your wishes would be in a variety of situations. For most people, this appointment should take effect only when and if you become unable to make your own decisions, but it can be made effective immediately if desired. Either way, if you are mentally competent and able to express your own wishes, your word would supersede your agent’s.
The second thing the document can do is state your specific wishes regarding certain aspects of your care. If you are designating an agent, you don’t need to complete this part, and you probably shouldn’t, since it would remove your agent’s authority regarding those matters. If you want to explain your specific wishes to your agent, put it in a letter, not this document.
Although this would seem to call for you to say how you want to be treated in case you become ill with COVID-19, it is actually unlikely that your advance directive would apply, since it only kicks in if you are terminally ill or unconscious and thus unable to make or communicate your own wishes to your doctors. Covid patients who end up on a ventilator are not considered terminally ill at the time they are intubated, since the treatment is intended to help them survive the condition and eventually recover. If you do not want to be intubated or given specific treatments even if you would probably survive, my recommendation would be to fill out the DNR form in Part 7, and add a special section in the Advance Directive form explaining exactly what treatments you don’t want if you become sick with Covid-19. You will need to discuss these issues with your doctor and have your doctor sign both forms. Otherwise, your health-care providers are going to take whatever steps are needed to save your life if it comes down to it.
I have added a provision to Part 2 explaining all this, which does not have a check-the-box opt-out like most of the choices, because I don’t think that alone would be effective when it really counts. If you really don’t want to be treated in an ICU even if it could save your life, you should talk to your doctor and your lawyer to make sure your documents are properly drafted.
Parts 3–7 are self-explanatory, and all of them are optional.
To make this document effective, you must sign it before two adult witnesses, and your agent can’t be one of them. It does not need to be notarized, but it can be. Either way, the temporary rules regarding remote notarization and witnessing of documents allow documents to be formally witnessed via teleconference, which is recommended at this time, and I would strongly suggest doing so with the help of an attorney or notary to ensure the new procedures are correctly observed.
Durable Power of Attorney
Power of Attorney for Delegation by Parent or Guardian
[Coming soon]