Seven Tips For Converting Your Retirement Plan To Your Estate Plan

This week I was in a Zoom meeting with an estate planning group I belong to and the attorneys reported on their concerns with the “panic wills” they were being asked to create. People are worried about the possibility of a sudden death due to COVID-19, and they want to get their legal affairs in order. Exacerbating the situation is the stories we read in the media about patients who are unable to communicate with loved ones, and hospitals that, because of the exigent circumstances, are creating their own do-not-resuscitate (DNR) rules—even if they conflict with the patient’s wishes.

If you are in a situation where you feel compelled to quickly create or update your estate plan, consider some suggestions that might help you in your quest. Every situation is different, but these seven tips may start the process that eventually leads you to instituting the arrangements you want and need.

1. Talk to an attorney.

Neither this post, nor for that matter anything you read online, should be considered a do-it-yourself guide to creating the necessary legal documents for your estate plan. While it is true that many estate planning documents don’t require an attorney’s direct involvement, in many cases the attorney is the one who can help assure the documents make sense for your situation and are legally executed. Furthermore, while most of the documents needed in an estate plan are state specific, be wary that articles found online offer “general” estate planning information. Also, there are many estate planning law firms that offer meetings via videoconference or phone that can be found and scheduled through their websites.

2. Create a will.

You can only have one valid will, and it should be created under the state laws of your domicile. In the current environment of stay-at-home restrictions, this can be a challenge. For example, my domicile is in Iowa, but I’m waiting out the virus at my condo in Florida. Iowa does not permit electronic wills; Florida does. I probably can’t create a valid Florida will in case I become sick down here while maintaining my Iowa will for when I get back home. Again, an attorney is preferable to make sure your will is validly drawn, executed, and attested.

3. Create your Power(s) of Attorney (POA).

A Power of Attorney is a legal form designating who you want (your “agent”) to act on your behalf if you are unable to do so, typically due to your physical or mental incapacity. I say “powers” because most people should have a POA for their financial matters and a POA for medical decisions. Different from a will, it is possible to have POAs in multiple states. For example, I might create medical and financial POAs in Florida as a “just in case” while I wait out the virus down here. The POAs are best created using the formalities of the state in which you anticipate their use. An advantage of POAs is that this is an area where a do-it-yourself approach may work. Many states provide a standardized fill-in-the-blank POA template. If your situation is such that you feel you need to create these POAs, search your state for more information. POA forms can often be obtained through state government agencies, the state’s bar association, or certain education and philanthropic institutions. And, if you’re worried about the fact that stay-at-home orders keep you from getting signatures and notaries, check to see if your state has made exceptions to the standard rules. Many states are temporarily instituting procedures for electronic signatures.

4. Complete HIPAA releases .

If you have designated an agent under your medical POA, but that agent doesn’t have HIPPA authority to be told your medical condition, your intentions will be frustrated. The privacy rules of HIPAA are intended to protect one’s health information privacy – and they are strict. Health and Human Services has issued some very limited HIPAA waivers to combat COVID-19, but many feel they leave out key guidance. It is far more prudent to execute a HIPAA Release Form for your POA agent in advance. Fill-in-the-blank release forms are available online.

5. Create a living will / advanced directive .

This is where variance among states is particularly acute. Decades ago, individuals had almost no say over life sustaining treatments. The physician decided on things like resuscitation, feeding tube insertion, or the use a respirator. Many states have moved aggressively to permit advanced directives where the patient indicates how and whether he or she wants these kinds of life sustaining measures to be used. In some cases, the advanced directive is part of the POA process. Other states have been more circumspect in how much latitude they will give the consumer. In general, living wills include provisions related to end-of-life care and require the maker’s and witnesses’ signatures to make them legally binding—but the process varies among the states.

6. Learn your state’s POLST process.

A Physician Orders for Life-Sustaining Treatment (POLST) order is a process that began at the national level in 1994. POLSTs are medical orders that travel with the patient. The process was put in place to improve communication of a person’s decisions to accept or decline medical intervention and to ensure these decisions are honored. All states have some means for such a directive, but the procedures vary greatly. Particularly in these times where there is a concern about overly burdened hospitals, you may want to know what procedures you can take to assure your wishes will be honored in the time of a medical crisis. Advanced directives and POAs are important, and generally should be filed with your physician and hospital, but the POLST order is in many medical emergency situations the one form the healthcare worker sees. In many states, the law mandates that the form be in bright colors and be placed in the patient’s medical chart.

7. Have a document storage plan.

Estate planning forms are of little value if it takes too long to find them. Your POA will be ineffective if the physician already unhooked the ventilator. The will indicating your burial wishes will be moot if the document is sealed in an inaccessible safety deposit box. I will not attempt to offer the many ways that can be used to assure easy access to documents for POA agents and loved ones, but I suggest that this be considered and handled in advance. And, I would suggest two areas where storage may not work as well as many assume. First, safety deposit boxes can be a problem because of the rules that banks have concerning access after the box holder’s death. Second, while virtual vaults are all the rage in estate and financial planning, they may not have the legal usefulness the client expects. For example, a will stored in a virtual vault may not be legally binding in states that require an original signature paper will.

These are stressful times, and it is understandable if your interests in your retirement plan may be morphing into concerns about your estate plan. Be sure to check in on your own emotions before making major decisions, get some help in creating your plan, and communicate your plans to your loved ones. Finally, once the threat of the coronavirus calms down, review and update any plans made and documents signed during this pandemic.

This article was written by Steve Parrish from Forbes and was legally licensed by AdvisorStream through the NewsCred publisher network.