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By John R. Merlino Jr. Esq.
Founding Attorney

Q: What are advanced directives and why they are important in a pandemic?

The global pandemic has caused a sense of urgency in people without a comprehensive estate plan. Many people know what a last will & testament is, even though less than one in three people have had one drawn up according to a study by

While it’s important to have a will drafted, New York and New Jersey estate planning attorneys want people to know about the other legal documents they especially need in the face of this pandemic– advanced directives. Unfortunately, only one in five people even know what an advanced directive is.

Most of us have seen the headlines about the thousands of people with COVID-19 dying alone in hospitals and being buried without formal funerals. Others who recover often spend weeks in isolation on ventilators. Imagine being so sick and having no one to speak to—or to speak on your behalf?

What is an advanced directive?

Planning for incapacity is the goal of advanced directives. They are legal documents prepared when you have the mental capacity to execute them. They are drafted by an estate planning attorney generally as part of a comprehensive estate plan. Their purpose is for you to make important decisions and/or designations now – in advance – for what you want to happen and who you want to take charge of your affairs in the event you become incapacitated at some point in the future.

Two popular examples of advanced directives are living wills and health care proxies. In a living will, you specify what type of medical treatment you would want (or not want) to have if you become incapacitated through illness, accident, or injury and are unable to communicate on your own. You are making future end-of-life decisions now when you are well. Some of the decisions addressed in a living will include Do-Not-Resuscitate (DNR) orders, administration of antibiotics, hydration and feeding tubes, and whether you want to be put on a ventilator to prolong your life.

A health care proxy — or durable power of attorney for health care — allows you to name a trusted person right now to make health care decisions on your behalf in the future if you become incapacitated and can’t make them yourself. Powers of attorney can become effective immediately upon execution or in the future at the onset of the disability.

Why are advanced directives important in a pandemic?

Many COVID-19 patients are already incapacitated and facing being put on ventilators upon or shortly after arrival at the local emergency room—so they may be unable to communicate their wishes about their treatment. To further complicate the situation, family members may not be allowed to accompany or visit the COVID-19 patient, so having someone legally authorized to step in immediately and make crucial health care decisions in accordance with their wishes is necessary. In fact, hospitals will ask for these documents upon arrival. Great thought should go into who to entrust with such important power.

If you need assistance with a living will or health care proxy or with any other estate planning needs, the experts at Merlino & Gonzalez can help you. Contact us to schedule a consultation.

From our offices in Staten Island, New York, and East Brunswick, New Jersey, we help clients in both states in all aspects of estate planning and estate administration.

About the Author
John is a fierce advocate and the office guru for problem-solving and brainstorming. He guides clients through every stage of a real estate transaction from offer to contract, navigating through nerve-shattering home inspection and title clearance concerns, maintaining constant contact with lenders, conducting the actual closing, and continuing to advise clients with regard to any post-closing concerns.  John brings a practical and fair-minded approach to the process which has earned him the respect of his clients and peers.