ESTATE PLANNING VEHICLES FOR VULNERABLE CLIENTS

Who is a vulnerable client?

There is no statutory definition or guideline as to who ‘vulnerable clients’ are. As such, for our purposes, vulnerable clients can include (but are not limited to):

• The elderly (persons over the age of 65).
• Children (persons under the age of 18).
• Individuals who are incapacitated.
• Individuals at risk of physical harm (e.g. in domestic violence scenarios).
• Pregnant women.
• Individuals with mental or physical disabilities.
• Individuals with significant health issues (including those with terminal illnesses).
• Individuals who are illiterate.
• Individuals with cultural or language barriers.

Matters involving these clients often call for faster-than-normal turnaround times for the delivery of legal services, enhanced privacy or security measures, third-party support (e.g. from a close relative or carer) and/or expert substantiation (e.g. from a qualified medical doctor or psychologist). For the purposes of this article, we intend to focus mainly on the elderly, individuals who are incapacitated, and individuals with significant health challenges (hereinafter collectively referred to as ‘vulnerable client(s)’), considering they are most vulnerable during the COVID-19 crisis.

From an estate planning perspective, what options do vulnerable clients have in order to protect their property and handle their affairs?

Vulnerable clients have several options to protect their estates, including:

• A Last Will and Testament (‘will’).
• A trust.
• A joint tenancy agreement with right-of-survivorship.
• An enduring power of attorney (‘EPOA’).
• Advance care directives.

A will, in the conventional sense of the term, is a public, legally binding document that disposes of your property upon your death. It has no legal force until your death. Once a will has been validated (by probate), the administration of your will will then be carried out by an Executor/Executrix who usually will have been named in the will.

A trust, by contrast, will come into effect once it has been created unless, of course, it is a testamentary trust in which case it will come into effect after your death under your will. Trusts are private and involve the transfer of property from a Settlor (the creator of the trust) to an appointed Trustee who will hold the property for the benefit of the designated beneficiaries. Invariably the instrument creating the Trust will provide for distribution of the property in due course  to or among the Beneficiaries, usually after some triggering event.  Trusts are usually costlier, can take longer to construct, and entail high standards of management or supervision on the part of the Trustee(s). However, they do offer a higher degree of privacy and flexibility when compared to wills.

You may also want to enter into a joint tenancy agreement with another party (typically a spouse) when dealing with particular assets such as your home, shares in personal holding companies or bank accounts. Such an agreement can be used where you wish to co-own a particular asset with another party on terms that the survivor will automatically get the whole of the property upon the death of the other party. This right of survivorship operates automatically and overrides any provision in a will to the contrary. One disadvantage to such an agreement is that all parties must agree to the arrangement – e.g. if one party wanted to sell a home they own as joint tenants, they could not do so without the approval (and signature) of the other party.

An EPOA is another legally binding document which authorises a representative of your choice to manage your affairs on your behalf once you have become physically and/or mentally incapacitated (common scenarios include chronic degenerative illness, dementia or a sudden debilitating accident), leaving you unable to make business or property-related decisions for yourself. The EPOA can become effective on a specified triggering event (e.g. declaration from a medical doctor that you have dementia) or on a particular date for a specified length of time. EPOA’s can last for the duration of your lifetime or until you recover and can resume direct management of your own affairs. It should be noted that EPOAs must be deposited in the Registry of the Bahamas Supreme Court before they become effective. This implicitly involves some loss of privacy as well.

Lastly, vulnerable clients may opt for one of two advance care directives: a health care proxy or living will. For reasons that will be explained in the response to next question below, it should be noted that these are not currently recognised under Bahamian law.

A health care proxy (also known as a ‘durable medical power of attorney’) is a document that designates a particular individual to make all or some medical treatment decisions for you in the event that you become incapacitated or are otherwise unable to communicate such decisions for yourself (for example, you may be in a coma or on life support).

A living will, on the other hand, sets out directions for your end-of-life care (e.g. the types of treatment you would wish, or not wish, to receive in the event of some medical situation occasioned by a terminal illness). An example of this in the context of the Covid-19 crisis would be if a very old patient were to opt out of receiving assisted breathing via a ventilator if such ventilators were in short supply and could be better deployed to save someone younger or healthier.

Are health care proxies and living wills enforceable under Bahamian law?

There are no reported local cases dealing with this question nor is there any local statute that speaks to the issue. The whole Covid-19 experience, however, is bound to instigate  demands for legislation to both recognise and regulate this area of personal health care management. In the meantime, however, if a vulnerable client opts to have a living will and/or health care proxy, they would need to understand that they are not legally binding under Bahamian law.

This is not to say, however, that some local hospitals and law firms do not already have their own in-house advance care directives that will follow very strict guidelines (e.g. a declaration from a medical professional that you are of sound mind and that you are fully aware of your treatment options). These directives are currently being used – and your wishes will more than likely be honoured by the relevant hospital or health care facility unless, of course, they conflict with the overarching ethical obligations of the attending doctor.

Moreover, the vulnerable client should be aware that under sections 9 and 10 of the Hospitals and Health Care Facilities (General) Regulations (‘the Regulations’), hospitals and other health care facilities are statutorily obligated to (amongst other duties):

• Treat patients with considerate, respectful care at all times and under all circumstances with particular regard for their personal dignity.
• Ensure the privacy of any matter in relation to your medical history.
• Provide appropriate care.
• Communicate a diagnosis and prognosis (if known) to the patient.

Further, patients have the right to refuse medical treatment or procedures so long as they are competent to make such decisions; are fully aware of the implications of such decisions; and such decisions are made voluntarily (s. 10(1) of the Regulations).

If the patient does not fulfil the above criteria and cannot give informed consent, the hospital or health care facility will normally make attempts to contact a relative or legal representative prior to giving the treatment or procedure in question to the patient. However, after failing to make contact with a relative or legal representative, or where any further delay would further jeopardise the health or life of the patient, the hospital will presume consent on behalf of the patient unless “it is obvious from a previous declared expression of the patient that consent would be refused in the situation” (our emphasis) (s. 10(4) of the Regulations). It can be seen that this may be, potentially, a narrow gateway for the eventual recognition of health care proxies and living wills in the future. In the meantime, it is our view that if the patient did have a health care proxy or living will in the scenario illustrated above, it would probably be relied upon to guide critical health care decisions.

Where an advance care directive is considered valid within the jurisdiction in which it was made (e.g. USA), that fact will not automatically render the same legally binding or enforceable under Bahamian law. It should be noted, however, that should a medical doctor or care facility receive this foreign document on your behalf, this will be highly persuasive and factor greatly in the way in which you will be treated (unless, of course, there exists some greater public health risk that would override your wishes to refuse treatment – for example, a severely infected COVID-19 patient is unlikely to be released back into the general population if treatment is refused on the ground that the patient would prefer to take alternative medicine).

Is this a good time to have an estate plan drawn up?

Absolutely! Though the thought of planning for one’s estate after death may be uncomfortable (even taboo for some), one of the many sad realities of the COVID-19 experience is how quickly the disease can take an unexpected turn for the worse in an infected individual. Given the enormous number of persons within our society that have a high-risk of developing a severe illness from the virus (e.g. the elderly, diabetics, immunocompromised, etc.) any of the estate planning vehicles mentioned in this article would be helpful to you and your family should you become severely ill or pass away. Vulnerable clients or not, these estate plans can provide you with the comfort and peace of mind in knowing that your affairs will be carried out in accordance with your expectations.