Incapacity Planning Considerations Specific to COVID-19

April 30, 2020 Nick Esterbauer Capacity, Elder Law, Power of Attorney Tags: , , , , 0 Comments

Earlier this week, Ian Hull and I spoke at Osgoode Professional Development’s program on Powers of Attorney and Guardianship: Non-Contentious and Contentious Matters.

During the program, in addition to discussing new execution options for wills and powers of attorney, the panel shared its thoughts on a number of considerations relevant to the preparation of powers of attorney during the pandemic, including some of the following:

  • It may now be impractical to permit for decisions regarding personal care or property to be made only jointly by two or more attorneys acting together where the attorneys selected are not members of the same household.
  • In light of ongoing travel restrictions, it may be increasingly important that the selected attorney(s) for property and/or personal care are local.
  • It may be more difficult to access multiple medical professionals (or a specified medical professional) to confirm incapacity during a healthcare crisis.  The provision regarding the circumstances in which a power of attorney is to become effective should accommodate potentially limited access to a specified physician or more medical professionals than necessary.
  • It may be more important than ever to ensure that the original power of attorney documents (and/or copies) are physically accessible to the named attorney(s).
  • The current circumstances present a unique opportunity to assist clients in updating outdated plans and ensuring that powers of attorney are put into place for those who do not have them already.

Even outside of the context of a pandemic, considering practical issues like those set out above when creating or updating an incapacity plan is a worthwhile exercise and may expose potential problems with the plan before it is finalized.

Thank you for reading.

Nick Esterbauer

 

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