NORTH METRO ATLANTA — With an ongoing pandemic, now is the time for estate planning and granting financial or medical power of attorney. That’s the word from Joe Anne Swain from Roswell-based Swain Law Firm.
“You see the numbers of people in the hospital, and there is no telling how many have no legal documents, like trusts or medical power of attorney,” Swain said. “Everybody needs to plan. We will hope for the best, but you need to have a plan in place if you need someone to step in for you.”
Wills and trusts can also prevent exacerbating an already difficult situation.
“We see a lot of families fighting when someone (someone who has died) has no trust, and in many cases, no will,” Swain said. “It’s important to have that legal work in order…so that you your family knows what your interests were.”
Those needing to sign wills, trusts or other documents needing to be notarized can now do so online. Under an executive order by Gov. Brian Kemp, Georgians can legally sign such documents that require notarization through “real-time audio-video communication,” including the use of teleconferencing system Zoom.
For the past few weeks, virtual signings have been the default setting at Swain Law Firm.
“It’s a very simple process,” Swain said. “We watch them sign the documents on screen, and we notarize them when they arrive.”
Most forms are dropped off, but Swain said the office can also arrange for a pick-up for those who need it, such as someone in a senior care facility.
Swain said having a healthcare power of attorney is always important, but especially amid a worldwide health crisis. The legal document permits someone to make medical decisions on a person’s behalf if they are unable to do so themselves. Most grant this ability to their spouse, but Swain said a secondary power of attorney should also be finalized. She used the example of a couple being involved in a crash and both being incapacitated.
Swain said wills are okay to have if a person has no other legal estate planning documents, but a trust is preferable.
“A will has to be probated, all assets must go through probate court and creditors are allowed to assess any assets,” Swain said.
The probate court process typically takes 3 to 6 months, but it can go up to a year, Swain said.
“During that time, all the assets are frozen while bills need to be paid,” she said. “But if you have a trust, there is no probate court, it could be settled the next week.”
Holdings are also kept private with a trust, whereas Swain said “your life becomes an open book” through the probate court process.
There are two types of trusts — revocable and irrevocable. A revocable trust can be changed five times per year. Terms may not be changed with an irrevocable trust and a trustee is designated to make decisions on behalf of the trust holder.
Swain said irrevocable trusts are a good tool when someone has parents or a loved one with dementia.
Those who do have a will or trust should also consider updating them if needed. Swain suggests doing so at least every five years. Wills can be changed “all the time,” she said.
Georgians can legally sign documents virtually until May 13 when the executive order expires. Swain said there is a push to follow in the footsteps of other states to make virtual signings legal at all times.