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Estate Planning

Signs of the Times

Hyman Darling says the calls started coming in several weeks ago.

At first, there were a few, and then, as the news about the COVID-19 pandemic became steadily worse and the grim reality of the situation became ever more apparent, the volume started increasing.

On the other end of the line were people looking to update a will or estate plan, or, more likely, finish the one they’d started but never finished or finally get started with one, he said, adding that there are obvious reasons why.

“Everyone knows someone who knows someone who has the virus, and they’re worried — about their parents, their brothers, their cousins … somebody,” said Darling, a partner with the Springfield-based law firm Bacon Wilson and one of the region’s pre-eminent estate-planning specialists. “And there’s more people sitting at home with less to do; they’re paying attention to this and thinking about it. The news is very distressing, and people are responding to it.”

Meanwhile, healthcare workers, and especially those on the front lines of the crisis, don’t have to watch on TV — they can see it right in from them — and, thus, they’re responsible for many of these calls to Darling and specialists like him across the area.

This phenomenon, if it can be called that, is certainly keeping area estate planners much busier than they were, providing some much-needed peace of mind to those who are watching the news and seeing the death tolls rise, and even adding some new phrases to the lexicon, like ‘driveway signing.’

Hyman Darling

Hyman Darling

“Everyone knows someone who knows someone who has the virus, and they’re worried — about their parents, their brothers, their cousins … somebody. And there’s more people sitting at home with less to do; they’re paying attention to this and thinking about it. The news is very distressing, and people are responding to it.”

That’s the phrase Liz Sillin, an estate-planning specialist with Springfield-based Bulkley Richardson, summoned as she talked about one of the more challenging aspects of this development: documents need to be signed and notarized, and at this moment (things may well change), Massachusetts does not allow electronic signatures for such documents as wills and healthcare proxies.

That’s why there really are signings in the driveway — and with all the proper precautions taken for preventing or at least minimizing the spread of the virus.

“We take as many steps as possible to keep us all away from one another and not cross-contaminate the paper,” said Sillin, who has now been part of a few of these elaborate exercises, which involve the lawyers and four participants — the party creating the document, two witnesses, and a notary. “Everyone brings their own pen, and everyone steps back while one person signs, preferably without touching the paper with his or her hand. We use lots of hand sanitizer; we use a clipboard, and we sanitize the clipboard. It’s kind of a bizarre process, but there are people for whom getting these documents done is paramount, and if remote signing isn’t legal, this is the only way we can do it.”

Liz Sillin

Liz Sillin

“Everyone brings their own pen, and everyone steps back while one person signs, preferably without touching the paper with his or her hand. We use lots of hand sanitizer; we use a clipboard, and we sanitize the clipboard. It’s kind of a bizarre process, but there are people for whom getting these documents done is paramount, and if remote signing isn’t legal, this is the only way we can do it.”

Mike Simolo, an estate-planning specialist with Springfield-based Robinson Donovan, who, like most all of his counterparts, has taken part in a few driveway signings himself, agreed. And, like others we spoke with, he said that, while it’s unfortunate that it took a pandemic to get people to do what they should have some time ago, he’s glad that many have been motivated to get this important work done.

“People who had been putting this off for one reason or another are suddenly deciding not to put it off anymore,” he said. “They’re calling up, hoping to get a plan a plan in place sooner, rather than later.”

With the accent on sooner.

And while their phones are ringing more often, those we spoke with noted that they are apprehensive that some, in an effort to get something done, and in a hurry, will take shortcuts, perhaps visit one of the legal websites out there, or, worse still, take the DIY route.

“This is LegalZoom’s dream situation,” said Simolo, referring to the popular website that provides legal assistance. “People are waking up, watching the news, and realizing, ‘I don’t have anything.’”

He said that, while people can certainly take that route, he projects that many who do will leave out something or make a mistake that could have serious implications later, when loved ones are left to settle an estate (more on that later).

Mike Simolo

Mike Simolo

“People who had been putting this off for one reason or another are suddenly deciding not to put it off anymore. They’re calling up, hoping to get a plan in place sooner, rather than later. ”

For this issue and its focus on estate planning, BusinessWest looks at how the COVID-19 pandemic is prompting many to get important estate-planning work done, and how the legal community is responding.

Where There’s a Will…

As she talked about her greater workload and when and why it came about, Gina Barry, another partner and estate-planning specialist with Bacon Wilson, used the story of a pharmacist at one of the local hospitals — an individual with a number of the health risks that make him especially vulnerable to the virus — to touch on a number of the relevant points in this intriguing development.

“He’s working long hours in the hospital,” she said, “and he was terrified — and he probably still is — that, because of his high-risk concerns, he would be one of those who would contract the virus and not survive it.

“We started his plan a few years back,” she went on. “Recently, he e-mailed me and said, ‘I have no right to ask this, given that I delayed a bit, but can you rush?’ And I said, ‘absolutely, I can rush.’ I dropped everything and got it done.”

Continuing that story, Barry said this individual managed to get the notary from the hospital and two of his co-workers together to sign these documents, and she Zoomed in for the gathering to make sure everyone was signing in the right place.

As noted, this anecdote touches on a number of the many elements of this story, from the fear exhibited by healthcare workers to the need to move fast; from the logistics involved with getting a signing done to the technology used by lawyers to get the documents signed, sealed, and delivered.

And it’s a story that is now playing itself out countless times across the region.

Indeed, while not everyone calling to write or update a will or a related document is in healthcare — and the lawyers we spoke with said these individuals have been given first priority — most everyone is terrified. And they’re also in a hurry.

And, for the most part, estate-planning specialists are able to accommodate them.

Simolo said a process that might normally take several weeks can be expedited and handled in perhaps a week to 10 days, with a fairly simple will being done in just a few days.

Meanwhile, many of these wills and other documents — living wills and healthcare proxies are also being sought — are being created in what would be considered non-traditional ways. Indeed, since face-to-face meetings are all but out given new social-distancing guidelines, estate-planning specialists are using the phone, Zoom, and other vehicles for communicating with clients and getting documents reviewed.

“People don’t care about coming in now,” said Darling. “They’re happy to do the telephone messaging, e-mails, Zoom … as long as it gets done, they don’t care if they meet us in person.”

Interest in getting documents written and notarized is especially acute among those in healthcare, and often it’s those individuals’ loved ones who are getting the ball rolling.

“I’ve been contacted by the husbands and wives of doctors,” Simolo said. “They’re saying, ‘let’s get this done as soon as humanly possible.”

Sillin agreed, and noted that there is interest among those old and young to have their affairs in order.

“Just today, I got a call from someone who is a doctor — he’s very young and has a young family,” she explained. “He’s in a facility that has cases around him, and he’s like, ‘yikes, I have to do something.”

But interest is across the board, said those we spoke with, adding that some of those calling are finally getting around to having these documents written, while others are realizing that the ones they have are dated and need to be made current.

“People are at home reading about nothing but COVID-19,” said Sillin. “They begin to contemplate this aspect of life, and we’ve been getting a lot of calls from people of all ages who want to get going on some estate planning.”

Simolo agreed.

“It’s mostly been people who don’t have a plan in place or had a plan in place 25 years ago, when the kids were 3,” said Simolo. “Now, the grandkids are 3 — that kind of thing.”

But while those we spoke with are certainly pleased that their phones are ringing more — for themselves, but especially for their clients — they are concerned that many may try to do this work online or even draft something themselves.

“It’s been my experience that, nine times out of 10, something’s missing from those documents,” said Darling, adding that, in many other cases, documents are not signed properly. “You get what you pay for, and mistakes made now can be very costly later — not for the deceased, but for their loved ones; litigation is very expensive in a will contest, not to mention the emotional stress that it brings on family members.”

Barry agreed and summoned an analogy she’s used many times during her career — too many to count by her estimate — when talking about do-it-yourself wills and related documents.

“You can pull your own tooth, too,” she said. “But would you rather visit a dentist or tie a string to a doorknob and try it that way?”

Peace of Mind

Finishing her story about the pharmacist in one of the local hospitals, Barry said that, at the conclusion of the signing — which, again, she witnessed via Zoom — she asked her client if he now had some peace of mind.

“He signed, and his shoulders must have dropped like four inches visibly,” she told BusinessWest. “They were up around his ears, and he just relaxed and dropped his shoulders. And I said to myself, ‘this is why we’re doing this.’”

And doing a lot of this.

There aren’t very many bright spots to be found in the midst of this pandemic, but this is clearly one of them. People across the region are becoming proactive and getting needed documents in place.

And that’s allowing many more people to sigh, relax, and drop their shoulders.

George O’Brien can be reached at [email protected]

Health Care

Life on the Front Lines

Dr. Andrew Artenstein

Dr. Andrew Artenstein, chief physician executive and chief academic officer for Baystate Health.
Photo courtesy of Baystate Health

Dr. Andrew Artenstein isn’t the first to notice the lack of cars on the roads, but he’s certainly among those most invested in those open roads.

“When I leave work, I’m used to traffic, and there’s no traffic,” said the chief physician executive and chief academic officer at Baystate Health. “Every day feels like Sunday out there. The streets are a lot quieter. Hospitals don’t have visitors, so the hallways are quieter.”

Fewer people out and about means the social-distancing movement has largely taken hold in Western Mass., meaning fewer transmissions of the novel coronavirus and fewer cases of COVID-19 than would be present if people weren’t staying home. The question is, how much difference will it make in the end?

“I can tell you that I don’t know the effect, but I do know anything will help,” Artenstein told BusinessWest. “It’s the right thing to do, and it will hopefully blunt the peak. It will not prevent it totally, but if you can blunt the peak, flatten the curve, we can possibly manage the surge.”

What that surge will represent wasn’t clear at press time, when the state had tallied close to 17,000 cases of COVID-19 — a number that may be much higher as you’re reading this.

Based on expert estimates, Gov. Charlie Baker said Thursday that coronavirus hospitalizations in the state will likely peak between April 10 and April 20, with the total estimate of coronavirus cases in the state ranging from 47,000 to 172,000 over the course of the epidemic, or about 0.7% to 2.5% of the population.

“It appears the community has done a really good job of generally heeding the recommendations from our national and state public-health experts, which is, if you’re not sick, don’t come to the hospital,” Artenstein went on. “People still need other types of care; people still have cardiac issues or lung issues or kidney issues. That’s not going to stop. But people who don’t need emergency or hospital-level care, for the most part, are finding care in other ways, which is what they’re being told to do. That keeps people from transmitting infection in hospitals, and keeps them away from other patients who might be sick.”

That means patient volume for non-urgent matters is indeed down at Baystate, with some of that work being moved to telephone or telehealth platforms (more on that later), as well as outpatient clinics and urgent-care centers, all of which are also trying to enforce social distancing as best they can.

What is on the rise in the emergency room are cases of respiratory illness, fevers, and coughs, with many of those being admitted and testing positive for coronavirus.

“It appears the community has done a really good job of generally heeding the recommendations from our national and state public-health experts, which is, if you’re not sick, don’t come to the hospital.”

“There’s clearly a lot of transmission going on in the community, which is exactly what you’d expect from a pandemic,” he said. “If you look at the data, the vast majority of people [with the virus] are not sick enough to need to go to the hospital, but they’re still infectious and potentially transmitting it if they’re not isolating themselves.”

Artenstein should know all about the effects of isolation on pandemics. He founded and directed the Center for Biodefense and Emerging Pathogens at Brown University for more than a decade before arriving at Baystate, so “I have a fair amount of experience with these things. But this is a unique experience … a 100-year event.”

It’s an event that has seen Mercy Medical Center, like Baystate, shift from a strategy prioritizing preventive wellness to one that focuses on readiness and the immediate response to coronavirus — and an expansion of capacity where possible, said Dr. Robert Roose, the hospital’s chief medical officer.

“At this point, we have been heavily focused on increasing our available beds and staffing to continue to respond to the needs of the community, and we have been seeing increasing numbers of patients infected with COVID — and the acuity of those cases continues to increase,” he told BusinessWest.

That increase in the number of patients requiring hospitalization reflects what Mercy’s leaders are tracking on a national level, and he expects the trend to increase over the coming weeks.

HCC Police Captain Dale Brown stacks boxes

HCC Police Captain Dale Brown stacks boxes of personal protection equipment for delivery to area hospitals.

“In regard to our local preparedness, we have a robust surge plan that identifies three different levels of escalation to increase our capacity to treat increasing numbers of patients,” he explained. “We’re also coordinating with other local and regional hospitals on a surge-capacity plan in the event we need to share resources among different hospitals in the region.”

Testing, Testing

What would help predict and manage the coming surge is a more robust array of testing resources, but local hospitals are still hampered by a limit on how much is available at the state level.

“At the present moment, we’re prioritizing testing patients who are symptomatic and in need of care in the Emergency Department, as well as healthcare workers and first responders,” Roose said. “We’re prioritizing those groups per the CDC, and as testing capacity increases, then we’ll be able to offer more testing as it becomes more readily available.”

Artenstein reported the same protocol for priority test groups: patients hospitalized with symptoms, employees showing symptoms, and some first responders who are symptomatic. “We know it’s not in our control; it’s a national issue, and we’ve been severely limited in our ability to test. It’s starting to improve because of a tremendous effort by people at Baystate and some of our government officials to help us get more testing and more capacity and more rapid turnaround time. We’re starting to see an improvement, but it’s still not where it needs to be.”

As for the coming surge, Baystate began preparing for that in a number of ways over the past few weeks, including the construction of a rapid-response triage facility just outside the entrance to the ER. It holds around 40 chairs — each of them six feet apart — for individuals entering the ER.

“There’s community transmission of the virus at this point,” said Dr. Niels Rathlev, chair of the Department of Emergency Medicine, when the project was announced last month. “And we really are preparing for more patients showing up for screening. This is not to expand testing; the real issue is to try to keep patients that don’t require admission to the hospital — acute emergency care — and screen them rapidly out here.”

Construction of the triage center is a step that mirrors what is happening in other parts of the country, Rathlev noted, adding that some areas, such as the state of Washington, established such centers weeks ago in anticipation of a surge in visits to the ER and the critical need to triage those coming in. Meanwhile, field hospitals are being created at sites like Worcester’s DCU Center and the Boston Convention and Exposition Center.

Capacity concerns also cross over into the realm of protective equipment like masks and gloves. Roose said Mercy is working aggressively with suppliers to make sure it has what it needs. “I will say we have supplies, but I don’t think any hospital around here feels particularly comfortable with the amount they have because there may be a large influx of patients at any time.”

It’s a problem that has required some creativity. Earlier this month, Patriots owner Robert Kraft sent a team plane to China to pick up 1.2 million N95 masks. In all, Kraft partnered with the state to purchase 1.4 million masks for Massachusetts, and purchased another 300,000 protective masks for New York.

Locally, institutions have stepped up enthusiastically to meet the need. Springfield Technical Community College’s (STCC) School of Health and Patient Simulation donated personal protective equipment — including surgical masks, isolation gowns, and exam gloves — to Baystate Medical Center, Mercy Medical Center, Holyoke Medical Center, and Cooley Dickinson Hospital, in addition to emergency medical services personnel in the West Springfield Fire Department.

“We recognize there is a critical need for personal protective equipment at hospitals and medical centers,” said Christopher Scott, dean of the School of Health and Patient Simulation at STCC. “By donating our supplies, we are doing what we can to protect the healthcare workers who are running short on masks and other protective equipment. The community needs to work together to ensure we defeat this pandemic.”

Holyoke Community College donated similar equipment from its health-science programs to area hospitals. HCC Police Captain Dale Brown spent a day last month conducting an inventory of collected supplies — including boxes of isolation gowns, exam gloves, masks, goggles, hand sanitizer, and microbial wipes — at the Campus Police station. A representative from the Massachusetts Emergency Management Agency picked everything up to coordinate delivery to area hospitals.

“At this point, we have been heavily focused on increasing our available beds and staffing to continue to respond to the needs of the community, and we have been seeing increasing numbers of patients infected with COVID — and the acuity of those cases continues to increase.”

Even Dakin Humane Society pitched in, donating its in-house supply of disposable surgical gowns and booties, along with other personal protective equipment, to Baystate.

“We’ve seen news stories about the need for protective equipment being faced by those in human healthcare, so we reached out to Baystate Medical Center because they’re local,” said Karina King, Dakin’s director of Operations. “We anticipated that human health workers would need these supplies soon, so we recently stopped using disposable items at Dakin and found alternative equipment, including smocks that could be laundered and re-used instead of being disposed of.”

A researcher from UMass Amherst contributed in a different way, with a dose of data. Richard Peltier, a professor in the university’s School of Public Health and Health Sciences, partnered with Dr. Brian Hollenbeck, chief of Infectious Disease at New England Baptist Hospital in Boston, to test in his lab whether used N95 facemasks were still effective at blocking infectious particles after sterilization. They determined that, yes, masks could be safely sterilized and reused.

“While these are ordinarily disposable protective devices for medical workers, these are not ordinary times,” Peltier said, “and this science shows that sterilized face masks will protect our healthcare providers who are working under extraordinary conditions.”

Across the Distance

In short, there’s a lot going on to both help hospitals prepare for the surge and to reduce non-critical traffic as much as possible. To that end, a number of institutions have stepped up their telehealth efforts, including Valley Health Systems, which includes Holyoke Medical Center, Holyoke Medical Group, and River Valley Counseling Center.

“We are expanding our capabilities to meet the needs of our patients, especially those with ongoing health concerns that need to be treated and in contact with their healthcare providers,” said Spiros Hatiras, president and CEO of HMC. “It is important for everyone to maintain their health and safety regarding pre-existing conditions, as much as it is to protect from COVID-19.”

Behavioral Health Network (BHN) introduced a new program, BHNTeleCare, that allows individuals to continue counseling sessions with their therapists from the safety of their own homes.

According to Katherine Wilson, president and CEO of BHN, “this innovation in the way we provide therapy and counseling services is groundbreaking and allows us to render services where people are. This is particularly critical as a result of the needs that have emerged due to the spread of COVID-19. It allows a counseling avenue for those suffering anxiety and in need of support during this time of crisis affecting individuals and families.”

Meanwhile, MHA also introduced its new TeleWell virtual service delivery, which allows mental-health clinicians and their clients make virtual connections using a smartphone, tablet, or computer.

“With social distancing now part of daily life, people who receive therapy for emotional support, or who would like to, may experience uncertainty when it comes to making and keeping office-based appointments,” said Sara Kendall, vice president of Clinical Operations for MHA. “TeleWell provides another option by enabling people to keep their appointments virtually. Every day, more BestLife clients are using this option.”

All these efforts — including simply staying at home to avoid transmission — are helping, Roose said.

“I cannot stress enough how important the efforts of the community are in ensuring that our healthcare providers and resources adequately meet the needs of this crisis,” he said. “Physical distancing, diligent hand washing, isolating and quarantines when appropriate — those are the efforts that will flatten the curve and lessen the impact of this disease, and ensure that our healthcare providers have what they need to provide the care the community needs.

Meanwhile, Mercy’s incident command center continues to keep in contact with the entire Trinity Health system every day. “And every single day, I stress the importance of efforts we can all take to impact this disease. It’s something we all have the power to impact if we take proper precautions and follow the guidelines around physical distancing and quarantines. I can’t stress that enough.”

Those community efforts don’t guarantee Massachusetts won’t become as strained as New York City, Artenstein said, but they help.

“My feeling is that April is going to be very challenging in Western Massachusetts, and after that, I don’t know,” he told BusinessWest. “It quite possibly could extend well into May. I don’t think we’ll be completely out of the woods, and I do think, if you look at epidemics and pandemics, there are second and third waves sometimes.”

For example, he explained, the Spanish flu of 1918 saw a second wave late that year, and an even worse third wave arrived the following spring. COVID-19 has the potential of following a similar track because it’s new, and people haven’t built up the blanket of underlying immunity that keeps seasonal flu, while dangerous as well, under control.

“With each passing day, it becomes clearer we’re living in an unprecedented time, and with that comes uncertainty,” Roose added. “As this pandemic evolves, we are all called upon to learn quickly, work collaboratively, and constantly change how we do things. This is a community crisis, and it takes involvement and the efforts and support of everyone in our community.”

Ready for the Surge

Roose emphasized that he greatly appreciates those efforts, not just in the community, but from the selfless healthcare workers on the front lines.

“I could not be more inspired and impressed by our teams of providers, clinicians, nurses, everyone showing a commitment to putting patients first and responding to the needs of the community,” he said. “In a crisis like this, people show their true character, and it’s clear to me we’re much stronger together, and our teams are rising to this challenge.”

Artenstein agreed.

“I’ve never seen a group of more dedicated, committed, and compassionate people than I’ve seen here,” he said. “They’re working hard in adverse conditions.”

At the same time, he added, “they’re nervous, scared for their familes, and scared for themselves — and they have the right to be scared. But our people are true to their mission to provide excellent, compassionate care.”

No matter what form the April surge may take.

“This is a very unique point in our history — one that, hopefully, we’ll look back on and not have to relive.”

Joseph Bednar can be reached at [email protected]

Estate Planning

A Pandemic Estate Plan

By Gina M. Barry

COVID-19, also known as the novel coronavirus, has arrived in our communities. While statistics show that many people will survive being infected, they may experience incapacity due to significant symptoms, such as breathing difficulties and fever, and, for some, the infection will be fatal.

Most have diligently stocked up on food and household supplies, particularly disinfectants. Some have also prepared a kit of ‘illness supplies,’ containing items that would be needed in the event of illness, such as a thermometer, acetaminophen, and herbal teas. Surely, this preparedness helps to alleviate some of the anxiety that has become rampant as this virus takes its toll on our communities.

However, if you were to become so ill that you could not communicate, do you know who would handle your affairs? Have you given that person the legal authority that they would need to do so without added cost, time, and administrative difficulties? Additional peace of mind can be found in ensuring that you have a plan in place should you become ill or pass away.

Gina M. Barry

Gina M. Barry

“Estate planners are using modern technology, such as videoconferencing, to help you plan with the least amount of risk to all involved.”

Fortunately, legal services have been deemed to be ‘essential’ during this pandemic, and estate planners are using modern technology, such as videoconferencing, to help you plan with the least amount of risk to all involved.

Further, unless remote notarizations become legally acceptable, strict office protocols are in place to minimize the risk of illness transmission when documents are being signed.

A pandemic estate plan should, at minimum, contain the following documents:

Last Will and Testament

Your will directs how your probate assets will be distributed after you pass away. Your probate assets are those assets held in your name alone that do not have a designated beneficiary. A will is also necessary for you to name a personal representative (formerly known as executor), who will carry out your estate. Your personal representative will gather your probate assets, pay valid debts, and distribute the balance as set forth in your will. Further, a guardian can be named in your will to take custody of minor or disabled children. Likewise, a trust may be established in your will to provide ongoing financial protection for these children and other beneficiaries who should not receive their inheritance outright, usually due to spendthrift or addiction concerns.

Healthcare Proxy — and Possibly a MOLST

A healthcare proxy is a document that designates a person to make healthcare decisions for you if you are unable to make them for yourself. Your healthcare agent should make your decisions as you would make them if you were able.

Should you lose capacity and not have a proxy in place, your loved ones will need to petition the Probate Court to become your guardian, which is a lengthy, expensive, and public process. Further, access to the courts is more restricted during the pandemic, with a number of courts being accessible only for emergencies due to court staff having received positive COVID-19 diagnoses.

‘Living-will’ language should be included within the proxy to address your end-of-life decisions. This language generally sets forth that you do not want extraordinary medical procedures used to keep you alive when there is no likelihood of recovery. Due to the need for ventilators for COVID-19 treatment, many have asked whether they would be placed on a ventilator if needed.

Fortunately, recovery is quite possible with ventilator support; therefore, the triggering event of ‘no likelihood of recovery’ would not be present in most cases, and ventilator support for COVID-19 would be instituted. Here, it is especially important to review the language in an existing document and to discuss these concerns with your named proxy.

Those of advanced age, the terminally ill, and those with painful, chronic conditions may also consider establishing medical orders for life-sustaining treatment (MOLST) in addition to a healthcare proxy. A MOLST is a form, usually printed on bright pink paper, that contains actionable medical orders that are effective immediately based upon your current medical condition. A MOLST would eliminate the need for living-will language, but the best practice would be to reference the MOLST in your proxy.

“It is important to note that a living will and a MOLST are very different. A MOLST form needs to be signed by both you and your physician and is used by physicians to understand your wishes at a glance.”

It is important to note that a living will and a MOLST are very different. A MOLST form needs to be signed by both you and your physician and is used by physicians to understand your wishes at a glance.

A healthcare proxy, on the ther hand, only takes effect if you are incapacitated. Also, a living will asks the health care agent to take into account all facts and circumstances to decide whether recovery is likely before carrying out instructions to withhold or terminate life support, whereas a MOLST sets forth decisions you have already made about what you do and do not want as far as medical care.

The MOLST takes the place of do-not-resuscitate (DNR) and do-not-intubate (DNI) forms, as the MOLST is more comprehensive, but existing DNR and DNI forms remain valid. The MOLST not only addresses these situations, but also sets forth wishes regarding hospitalization, dialysis, and artificial means of receiving nutrition and hydration.

Durable Power of Attorney

A durable power of attorney is a document that designates someone to make financial decisions for you. The durable power of attorney is a very powerful document with authority that is as broad as the powers granted within it.

It gives power to the person you name to handle all your financial decisions, not just pay your bills. Should you lose capacity and not have a durable power of attorney in place, your loved ones will have to petition the Probate Court to become your conservator, which involves the same obstacles described above as to the appointment of a guardian.

Homestead Declaration

If you own your primary residence in Massachusetts, you should also record a homestead declaration in order to protect the equity in your primary residence up to $500,000 from attachment, seizure, execution on judgment, levy, or sale for the payment of debts. In some cases, such as advanced age or disability, the equity protection can be up to $1 million.

If a homestead declaration is not recorded, there is an automatic $125,000 of equity protection, which may be adequate for some. Homestead protection will likely be particularly important as the financial consequences of this pandemic take hold.

Conclusion

The COVID-19 pandemic has brought the possibility of disability or death to the fore, and prior dismissals of ‘it won’t happen to me’ ring hollow.

We are at a time when you should presume that it will, in fact, happen to you.

That being the case, would you prefer to have a plan in place to ensure your loved ones can manage your affairs with the least amount of delay, cost, and stress? If the answer is yes, please call an estate-planning attorney today, establish or update your plan, and give yourself and your family that much more peace of mind during this pandemic.

Gina M. Barry is a partner with the law firm Bacon Wilson, P.C. She is a member of the National Assoc. of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Assoc. She concentrates her practice in the areas of estate and asset-protection planning, probate administration and litigation, guardianships, conservatorships, and residential real estate; (413) 781-0560; [email protected]

Construction

Essential Questions

Since the state ordered most workplaces to close their doors last week, there has still been plenty of work going on — just less of it, in most cases, including in construction. Amid that slowdown are questions — is construction considered an essential function during this time? — and concerns, particularly concerning the amount of work being postponed in the short term and the potential long-term impact of a broad economic shutdown.

Is construction essential?

Well, to those who make their livelihood in that field, sure. Which is why they’re pleased that Gov. Baker, in his March 23 order to shutter most businesses in Massachusetts for two weeks, included among the exempt, ‘essential’ services “construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction.”

That’s broad enough to include most firms — but it does nothing to prevent individual jobs from being shut down due to widespread uncertainty about the impact of coronavirus on the overall economy.

“Since Governor Baker made his announcement, I would say maybe 25% to 30% of our projects were postponed or put on hold. Some just didn’t want any outside contractors on their site,” Carol Campbell, president of Chicopee Industrial Contractors, said — only two days after Baker’s order.

The news isn’t all bad, she added, especially concerning work that’s critical to a client’s supply chain. “Our phone is still ringing, and we’re still seeing some quotes going out.”

That’s worth noting, especially as many businesses, like bars and restaurants, have closed up shop completely for the time being, Campbell noted. “We’re still working, so we’re still feel quite fortunate. But, quite honestly, I don’t know what this means in the future. We have a pipeline of work, but I don’t know when this is going to break.”

For his part, the governor doesn’t want construction to slow down too much, announcing last week that his administration is finalizing guidance to establish standards around safe practices for construction work during the outbreak of COVID-19. At a press conference, he noted that, when a project is shut down, “you may be shutting it down permanently in some cases.”

While Boston Mayor Martin Walsh ordered construction sites to shut down for two weeks, and a few other communities have followed suit, Baker is trying to avoid a broad rollback of work that could have a long-term ripple effect.

“We have a lot of housing construction currently going on in Massachusetts. To completely lose, potentially, all of that new housing for the Commonwealth, housing stock, would be a tremendous loss,” the governor added. “There’s public construction that’s going on that needs to be completed. Some of it has to do with upgrading existing infrastructure, but a lot of it has to do with expanding infrastructure that people have deemed critical and important, that needs to be continued and finished.”

In other words, essential work. Which is why Campbell hopes the economy comes back to life soon, though not at the expense of public safety.

“We have a lot of housing construction currently going on in Massachusetts. To completely lose, potentially, all of that new housing for the Commonwealth, housing stock, would be a tremendous loss.”

“The president is saying Easter, but I think that’s too aggressive,” she said, adding that she thinks other economic experts’ projections of an early-June return to normal activity seems more realistic.

“But then I fear what that means,” she added. “I made a commitment to myself two weeks ago that we’re not going to do layoffs; we’re going to go two weeks by two weeks. We are keeping people busy; when we have jobs, they’re put on jobs. We’re doing additional things in house to make sure they have a full week’s paycheck and health benefits. So, right now, my business brain is still working, but the empathy and social side of my brain and heart have me worried about my employees.”

Vital Arguments

Across the U.S., the construction sector in in varying shades of limbo at the moment because the federal government recently released a list detailing industries whose workers are “essential” and should continue normal work schedules. Although the document lists industries for which construction is critical, construction itself was not explicitly included — and some states consult that list when determining which industries can work during shelter-in-place orders, notes Stephen Sandherr, CEO of Associated General Contractors of America.

“Halting construction activity will do more harm than good for construction workers, community residents, and the economy,” he said in a statement last week, noting that construction firms are already acting to ensure the safety and health of their employees in the face of the outbreak, including increased hygiene and halting group gatherings of staff, on top of the fact that construction workers already wear protective equipment, including gloves that will help protect them and their co-workers.

“Given the precautions already in place, halting construction will do little to protect the health and safety of construction workers. But it will go a long way in undermining economic vitality by depriving millions of workers of the wages they will need over the coming days,” Sandherr added. “At the same time, these measures have the potential to bankrupt many construction firms who have contractual obligations to stay on schedule or risk incurring significant financial penalties.”

Boston’s temporary construction ban — which excludes “emergency work,” including emergency street repairs and utility hookups — has alread caused concern due to the threat of delay-related claims, note Steven Gates and John Gavin of the international law firm K&L Gates, writing in National Law Review.

“Although each contract needs to be examined individually, many contracts contain force majeure clauses that may excuse delays based on the city’s ban on construction or delays generally caused by the outbreak,” they explain, noting that an analagous situation was the restrictions put in place in New York City in the aftermath of 9/11, when courts recognized that the circumstances could support a defense of impossibility.

During the temporary shutdown in Boston, some companies are looking to make an impact against coronavirus. Associated Industries of Massachusetts (AIM) reported that Suffolk Construction of Boston is donating more than 1,250 N95 protective masks to the Mass General Brigham hospital network so they can be used to protect patients and medical personnel. The firm has also reached out to other construction companies in the Boston region to encourage them to donate their masks to local hospitals to assist in the effort.

Spreading Anxiety … and Hope

Back in Western Mass., Campbell said her company’s policies and protocols for a time like this are in order, and they’ve always been diligent about cleanliness and reducing the spread of germs.

What she’s more concerned about is the long-term damage any sort of major construction-industry slowdown will produce. The global financial collapse of 2008 spurred the Great Recession, but because of how its projects were scheduled, Chicopee Industrial Contractors had strong years in 2008 and 2009.

“Then, wham, it was like hitting a brick wall,” she said. But at least there was time to see the tough years coming. “With this, we felt it right away with everyone else, and usually we don’t because of the type of business we are.

“If you go back to every recession when I’ve been interviewed by BusinessWest, I’ve made the same statement — ‘I’ve seen nothing like this before,’” she continued — and she especially feels that way right now, even though no one can tell whether the current climate will, in fact, bring on the ‘R’ word.

“I feel every recession should be the same, right? You play by the rules and come out on the other side,” Campbell went on. “I don’t know. With the stimulus package, I hope there’s help for small businesses, yet the other side of me knows, with all the increases in taxes we’ll see, we’re going to be chasing our tails for quite a long time.”

In AIM’s report on employer concerns surrounding COVID-19, Gary MacDonald, executive vice president of AIM HR Solutions, said those he’s spoken with have, like Campbell, been busy exercising the empathy part of their brains because they know workers are worried.

“I made a commitment to myself two weeks ago that we’re not going to do layoffs; we’re going to go two weeks by two weeks. We are keeping people busy; when we have jobs, they’re put on jobs.”

“We have seen an overwhelming sense of concern from companies about their employees’ welfare. ‘How can we best keep them safe? What can we do to keep them employed? If we have to reduce our workforce, how do we continue pay and benefits the best we can?’” he noted, adding that his team has answered countless calls from worried AIM members during the past two weeks. “The crisis has really brought out the best instincts of employers as they fulfill their responsibilities as the keepers of economic opportunity in Massachusetts.”

In short, he added, “we hear this consistent expression of compassion, care, and ‘we are in this together.’”

Sandherr said he hopes that concern is reciprocated by lawmakers and governors who can, in some ways, impact the amount of construction work going forward. “We understand the need for social distancing to help slow the spread of coronavirus. But needlessly shutting down projects where workers are already protected will not help. Instead, it will threaten the livelihood of millions of craft professionals, force many small and family-owned businesses to shut down, and undermine the nation’s ability to respond to natural disasters, including the coronavirus.”

Right now, Campbell said, her employees are not too frightened.

“We’re telling them we will get through this — and it is we — and we will come out on the other end,” she told BusinessWest. “But other people I’ve talked to are panicked, and rightfully so. How many people have six to eight months of income in their savings accounts? I know all the financial advisors say to do that, but most do not.”

At a time when everyone — employers and workforce alike — are in an unprecedented kind of limbo, that other end can seem frustratingly out of reach.

Joseph Bednar can be reached at [email protected]

Coronavirus Opinion

Opinion

By George O’Brien

 

Remember that classic scene in Young Frankenstein (even you Millennials have seen it, I’m sure) when Gene Wilder (Dr. Frederick Frankenstein, pronounced Frankensteeen), and Marty Feldman (Igor) are in the graveyard digging up the corpse that will become the monster. Wilder says, “what a filthy job!” Feldman says, “it could be worse.” Wilder asks, “how could it possibly be worse?” Feldman says, “could be raining.”

And then it starts pouring.

Life has felt like that these past few weeks. Someone will say, ‘how could it be worse?’ And it starts raining, in a proverbial sense. People have lost their jobs. Businesses have lost some, most, or all of their revenue streams. People are running out of toilet paper — or they’re really, really afraid that they will. We lost Tom Brady to the Tampa Bay Buccaneers! (The who?) People stuck at home are losing their patience, if not their minds, and we’re just really getting started with this pandemic. And then it snowed on Monday!

There are no sports! How many times can we watch the Patriots beat the Falcons in replays of Super Bowl LII? We know how it ends! The Masters has been postponed if not cancelled. Golf courses are apparently not on the ‘essential’ businesses list put out by the governor’s office. How can golf courses not be on the essential businesses list?

If anyone says ‘it could be worse,’ our immediate temptation is to say, ‘no, it can’t.’

To borrow from Dickens, these really are the worst of times. This is worse than any downturn in the economy, worse than 9/11, worse than the Great Recession. It’s worse because there is so much uncertainty — about today, tomorrow, three months from now, and a year from now.

Not only that, but life is different now. Everything is weird. If we’re actually out on the sidewalk walking and we approach other people, we avoid them like a game of Frogger. If we’re out at the store, we look at everyone as if they might have the virus, and the look isn’t a good one.

Everyone is on edge about their jobs, their life savings, their 401(k), their health, the health of their loved ones. You can see it in their faces, and if you’re talking to them on the phone (which we all are), you can hear in their voices. You can also hear them yawn, because people are not sleeping, by and large. Who could sleep with all this going on?

If we’re actually out on the sidewalk walking and we approach other people, we avoid them like a game of Frogger.

And yet, there is something else, something far more powerful and positive going on, and it’s worth noting.

Yes, there are now security guards and even off-duty police in the toilet-paper aisle in many supermarkets. And yes, sales of guns and ammo are skyrocketing. And yes, we’re already starting to see a rise in reported instances of domestic violence. But despite all this, it’s abundantly clear to me that people are caring more about each other.

And it’s about time.

People don’t just put their initials at the end of an e-mail anymore. They say ‘be well,’ ‘stay well,’ or ‘take care of yourself.’ And they mean it. People are bringing food and coffee to those who are shut in (and that’s most people now). Co-workers are being nicer to each other. When I dropped off the golf cart at a club in Connecticut last Saturday, I walked over to the attendant who was parking it — someone who would likely be unemployed in about 27 hours — and said (from six feet away), “good luck to you — hope you get through this OK.” And I meant it.

You’re seeing a lot more of that these days, and this, more than anything else, will get us to the other side — whenever and whatever that happens to be.

Yes, it could be worse. It could be raining. It seems like it’s already raining — pouring, in fact. But there’s a little sunlight trickling in.

And it might be just enough.

George O’Brien is the editor of BusinessWest.

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