Although normally the possibility of incapacity or even death may be the last thing you want to think about, the current pandemic may be bringing these issues to mind. An estate plan can provide a host of benefits, including avoiding probate, tax savings, providing for children or other dependents, security and peace of mind—both for this current time of crisis and long after this has passed.
Two documents in particular, a Trust and a Durable General Power of Attorney, can help you and your loved ones be prepared, in the event you are temporarily disabled or otherwise unable to manage your own affairs. These documents allow you to appoint someone to act on your behalf in different scenarios, as described below.
Creating and Maintaining a Current Estate Plan
If you already have an estate plan, this may be a good time to review it and ensure that it is up to date. It is important that the instructions and appointments contained in your plan reflect your current wishes.
If you do not already have an estate plan, consider executing the following documents, which are included in our standard estate plan:
- Will: In a Will, you can nominate a personal representative to administer your estate upon your passing, direct disposition of your assets, nominate guardians for your minor children or incapacitated persons, and even provide burial instructions. In order for a Will to be utilized, the court must determine that it is valid through a probate proceeding.
- Trust: Depending on your circumstances, a trust may also be appropriate. A trust can allow your assets to avoid probate. It can direct what happens to your assets if you are incapacitated as well as after your death, ranging from very simple to very complex instructions. Usually you will be the initial trustee of your trust, and you will appoint someone to serve as successor trustee, if for whatever reason, you are not able to continue serving in this capacity. Having a successor trustee in place can allow for a seamless transition of authority during times of incapacity and death.
- Durable General Power of Attorney: A Durable General Power of Attorney appoints someone to act on your behalf to handle any assets not owned by your trust, should you be unavailable to act, or become incapacitated. Most commonly, a Durable General Power of Attorney becomes effective immediately, allowing someone to act right away should unexpected circumstances arise. However, these documents can also be set up to become effective only upon determination of your incapacity. This type of Power of Attorney is called a Springing General Power of Attorney.
- Advance Healthcare Directive: An Advance Healthcare Directive, also sometimes referred to as a “Living Will,” designates someone to make medical decisions for you in the event you are unable to communicate. It also allows you to memorialize your wishes regarding end-of-life decisions, and make requests with respect to pain management, artificial nutrition, and more.
Personal Preparedness
In addition to the above documents, taking the time to compile information regarding your finances, medical care, and even social media accounts, can ease the burden on those who care for you should you become incapacitated or pass away.
You can download our Personal Preparedness Checklist here.
Probate Court
Pursuant to the Emergency Orders issued on March 16, March 20, April 3, April 27, and May 28, the First Circuit Probate Court is still operating, with some modifications. With respect to hearings, the Court is ruling by Minute Order whenever possible, and holding telephonic or video hearings as possible. These decisions are made on a case-by-case basis. As of June 1, limited in-person appearances are allowed, at the Court’s discretion. In-person proceedings are being staggered to allow for social distancing, and any participants are required to practice social distancing and wear face coverings unless otherwise authorized by the Court. First Circuit Judiciary facilities remain closed to persons with (1) a fever, cough, or other respiratory symptoms; (ii) traveled in the past 14 days; or (iii) had prolonged contact with a person who has or is suspected to have COVID-19. Conferences, including status and settlement conferences are to be conducted remotely as well.
These measures are expected to remain in place through June 30, 2020.
If you are considering initiating a matter, or have a matter pending with the Probate Court, and are uncertain of how it may be impacted during this time, please contact Megan or Laurel at 531-8031 or email Megan at mlml@hawaiilawyer.com or Laurel at lep@hawaiilawyer.com.
