Though it may be hard to believe, it is once again December, the time of year when the days grow shorter, the weather grows colder, and a variety of religious and secular holidays and traditions call on us to get together to celebrate with family and friends, many of whom we may only see once or twice a year. For those who live far from family, this time of year frequently involves traveling to see relatives in person, possibly for the first time in a long time in light of the fact that the COVID-19 pandemic meant that many of us had to scale back or even cancel our cherished celebrations last year. I personally am looking forward to seeing many relatives and friends who I have not seen since 2019.
Although it’s not always the easiest topic to discuss, this time of year can be a great opportunity to talk to your parents (and/or other close relatives) about ensuring that they have plans in place for what happens both after they die and in the event they become incapacitated during life. In particular, you should consider discussing:
1. Your Parents’ Comprehensive Estate Plan. Having a comprehensive, up-to-date estate plan in place is important both because it puts your parents in control of what happens after their deaths and during periods of incapacity and because, if properly structured, it avoids costly, intrusive, and time-consuming court proceedings.
A comprehensive estate plan consists of, at a minimum, Wills to dispose of your parents’ probate assets after death, durable powers of attorney to permit someone chosen by them to manage their financial affairs if they become incapacitated, health care proxies to permit someone chosen by them to make medical decisions on their behalf if they become incapacitated, and HIPAA release authorizations to permit your parents’ health care providers to disclose and discuss their protected medical information with those listed in the document. A comprehensive estate plan often also includes one or more revocable living trusts, which can allow the creator(s) of the trust(s) (the “Grantor(s)”) to avoid the probate process after death and streamline the management of assets during life. Properly structured revocable trusts can also, in the case of a married couple, minimize or even eliminate the estate taxes due upon the death of the surviving spouse.
If your parents do not have an up-to-date, comprehensive estate plan in place, you should encourage them to speak with an attorney who practices in the area of estate planning to set one up.
2. Your Parents’ Plans Regarding Long-Term Care. The seemingly ever-increasing cost of long-term care, not to mention the different options available, is often a source of significant stress and worry for people as they age. Generally speaking, there are three ways to pay for long-term care: (a) paying privately; (b) purchasing long-term care insurance to cover a portion of the costs; or (c) qualifying for needs-based government assistance through Medicaid, which has strict financial requirements. Each option has its own pros and cons, and not every option is available in every situation. Medicaid, for instance, will typically cover 24/7 long-term care in a nursing home and will often cover some amount of home care (though usually not 24/7 home care), but will only very rarely cover care at an assisted living facility.
If your parents are concerned about long-term care or would like to know more about their options, you should encourage them to speak with an experienced elder law attorney about these issues. It is important to understand the different long-term care options as well as what advance planning strategies are available and appropriate.
3. Your Parents’ Wishes Regarding End-of-Life Medical Care. Modern medicine is rather miraculous in its ability to keep people alive longer and longer, but these advances mean that it is more important than ever to think ahead about what types of measures you would want to be taken to prolong your life if you are, for instance, terminally ill. In Massachusetts, there are two primary documents that can be used to express these wishes. The first is a living will, which is not legally binding and is usually a general statement of intent regarding end-of-life care (e.g., “Do everything you can to keep me alive as long as possible,” or “Do not use “extraordinary” methods such as a feeding tube to extend my life.”). Although this document can often be prepared as part of a comprehensive estate plan, since it is not legally binding, it can also be prepared by the individual without the involvement of a legal professional.
The second document is a Medical Order for Life-Sustaining Treatment (commonly abbreviated as a “MOLST”). Unlike the other documents discussed in this article, this document is prepared in consultation with a physician and, once signed, becomes a medical order regarding certain types of end-of-life care which is placed in the patient’s medical record. Although MOLSTs have traditionally only been used with patients who are terminally ill and/or have a severe chronic illness, some physicians have started discussing them with a wider array of patients.
4. Your Parents’ Wishes Regarding Funeral Services and the Disposal of Their Remains. A crucial task that generally falls to children after the death of a parent but is rarely talked about in an estate planning context is the disposal of the parent’s remains and the planning of their funeral. These decisions generally need to be made very quickly after death, at a time when family members may still be in shock and/or not thinking clearly. This makes it especially important to discuss your parents’ wishes ahead of time rather than trying to guess at what they would want after they’re gone, when you could be vulnerable to exploitation. While traditionally funerals have been relatively somber affairs and the options for the disposal of bodily remains were limited to a traditional burial or cremation, newer options, such as green/environmentally friendly burials and memorial services that are more celebratory as opposed to mournful, are becoming more common and widely available.
If your parents have particularly strong wishes about the disposal of their remains and/or their funeral services, they may want to consider adding a Directive as to Remains to their estate plan. This highly customizable document can express wishes regarding the actual disposal of bodily remains (e.g., burial or cremation) as well as wishes about funeral and other memorial services, including whether certain religious services or rites should be performed and whether any sort of service should be held at all.
5. Your Comprehensive Estate Plan and Wishes. While most of this article has focused on what you should discuss with your parents about their wishes and plans, you should also take the opportunity to discuss what your wishes and plans are for yourself. This is especially true if your parents are named in your own estate plan documents, either as beneficiaries or to serve in one or more key roles. As important as it is for you to know your parents’ wishes should something happen to them, it is equally important for your parents to know your wishes should something happen to you. Additionally, taking the opportunity to lead by example may give reluctant parents the push they need to get their own plans in order.
These topics do not qualify as light holiday dinner conversation, and are often difficult, awkward, and/or painful to discuss. Unfortunately, while not discussing it may save you from some difficult, painful moments now, it may be even more painful if these discussions are put off when there’s been an emergency and decisions need to be made quickly either with no plan in place or with a plan that no one knew about beforehand. That said, this is not a discussion that should be rushed into or done haphazardly. Fortunately, groups such as The Conversation Project and the broad “death positivity” movement have resources available online to help families approach these subjects thoughtfully and productively.
Francis R. Mulé is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement, and elder law matters. He is an active member, and the current Chair-Elect, of the Massachusetts Bar Association’s Young Lawyers Division. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.
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