Durable Power of Attorney

Talking to Your Parents about Estate Planning

June 12, 2024 by Attorney Leah Kofos

With Father’s Day just a few days away, now is the perfect time to initiate a meaningful conversation with your parents about estate planning, blending the celebration of your parents’ legacy with the practical steps needed to preserve it. Despite its importance, only 33% of people in the United States have executed some form of legal estate plan. The sensitive nature of the topic causes many people to kick the can down the road, intending to deal with it later, which is a problem when “later” becomes “too late.” Are your parents included in the overwhelming majority of people who have pushed off this essential legal planning?

Contrary to popular belief, estate planning is not just about distributing assets after a person’s death. Some documents, like a Health Care Proxy and Durable Power of Attorney, actually work during the person’s lifetime so that loved ones have the authority to take care of the person while he or she is living but incapacitated. With aging parents, these documents are just as important as post-death documents like Wills and Trusts. More significantly, estate planning is about ensuring that your parents’ wishes are respected and that their legacies are preserved in a way that reflects their values and intentions.

Initiating this important conversation with your parents may be daunting, so follow these steps to make the discussion a little easier:

Start the discussion by framing it within the context of Father’s Day, emphasizing your desire to honor your parents’ legacy and ensure that their contributions are remembered and cherished. If you feel comfortable, you can briefly discuss key documents such as Wills, which outline the distribution of assets, and Trusts, which can reduce estate taxes and avoid the probate process. You should also highlight the importance of incapacity documents like a Health Care Proxy, HIPAA Authorization, and Durable Power of Attorney. These documents will make it easier on your family if your parents’ capacity is diminished to the point that they cannot make their own medical or financial decisions. Incapacity documents are a safeguard against a long, expensive court process to obtain a guardianship and/or conservatorship that can occur when your parents do not plan ahead.

It’s important to remember that you won’t have all the answers – and you’re not supposed to. That’s our job. Encourage your parents to set up a meeting with an estate planning attorney who can discuss their needs in more detail, give them information about the documents appropriate to their situation, and answer any questions they may have. Father’s Day can be the first of many conversations that ensure your parents’ estate planning remains current and effective. By simply starting the conversation, you’re taking the first step in giving your parents the gift of peace of mind, knowing that their legacy will be honored and their wishes respected, all while strengthening your family’s future security.

Attorney Leah A. Kofos is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of trust and estate planning, estate settlement, and elder law matters. 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 ssbllc.com or call 781-461-1020.

Planning for a Special Needs Relative: Honoring Special Needs Law Month

October 18, 2023 by Brittany Hinojosa Citron

It’s fall again and October is the time of year when the Massachusetts Chapter of the National Academy of Elder Law Attorneys (“MassNAELA”) celebrates Special Needs Law Month by hosting valuable legal education programs for attorneys regarding new developments in special needs law. MassNAELA also distributes copies of its Special Needs Advocacy Toolkit, which is accessible to the public and provides tools to help people advocate for the rights and well-being of individuals with special needs. The Toolkit provides important information on financial management, as well as an understanding of Medicare and Medicaid, a student’s right to an independent educational plan, housing options, and other issues. You can find the Second Edition of the Toolkit here: https://massnaela.com/wp-content/uploads/2021/10/MassNAELA-Special-Needs-Toolkit-Second-Edition.pdf

Not only are many of our attorneys here at Samuel, Sayward & Baler active in MassNAELA, our senior associate attorney, Abigail Poole, is the current President! We are proud to be part of an organization of attorneys who are experienced and trained in working with the legal problems of individuals of all ages with disabilities. We would like to honor Special Needs Law Month by providing you with basic information on estate planning for a special needs child, grandchild, or other relative.

Financial and Healthcare Documents for an Individual with Special Needs

1. Durable Power of Attorney

A Durable Power of Attorney is a legal document in which the principal (the person creating the document) designates someone to make legal and financial decisions in the event of incapacity. This document is especially important for a special needs individual because it ensures that the individual’s financial affairs are properly managed in the event of incapacity. However, if the special needs individual is already incapacitated or is unable to understand the legal implications of the Power of Attorney, then another alternative will need to be explored, such as conservatorship.

The person designated in the Power of Attorney is called an attorney-in-fact. The attorney-in-fact should not only be trustworthy and capable of making decisions in the best interest of the principal but should understand the implications of their decisions on the individual’s eligibility for needs-based government benefits. The attorney-in-fact should be informed about the rules and regulations governing such benefits to prevent any action that could jeopardize the individual’s eligibility. The Power of Attorney can be drafted to include specific instructions and guidelines for the attorney-in-fact in accordance with the individual’s circumstances.

2. Health Care Proxy and HIPAA Authorization

A Health Care Proxy is a legal document used to designate a Health Care Agent to make medical decisions on behalf of the principal (person creating the Proxy) if the principal is deemed by his or her medical provider to be unable to meaningfully participate in decision making. As with the Durable Power of Attorney, the special needs individual must have capacity and an understanding of the document in order to execute it.

The Health Care Agent should be someone who the individual can discuss his or her healthcare wishes with and who will follow those wishes. The Health Care Agent’s role is to speak with the individual’s doctors and make healthcare decisions based on the individual’s wishes, including direction regarding life-sustaining procedures.

The HIPAA Authorization allows the persons listed in the document to obtain personal medical information and speak with medical providers. The HIPAA Authorization and the Health Care Proxy are extremely important for special needs individuals over the age of 18. That is because once a person is age 18, they are deemed legally competent to make decisions for themselves. At that point, parents or other caregivers no longer have the right to make healthcare decisions on the individual’s behalf or even to speak with physicians or other medical providers. without written consent.

Guardianship and Conservatorship

If an individual doesn’t have capacity or doesn’t understand the Power of Attorney or Health Care Proxy they are signing, then guardianship and/or conservatorship may be necessary. A guardian is someone who has legal responsibility for an individual’s physical well-being and the authority to make all decisions regarding his or her care, including healthcare decisions, residence, and education. This legal responsibility is created by the Probate and Family Court upon the court’s appointment of the guardian.

Similarly, a conservator is someone appointed by the court to manage the financial assets of a special needs individual if the individual is unable to manage the assets themselves. A conservator may also apply for and manage government benefits on behalf of the individual.

Any person serving as a guardian or conservator should name successor guardians and conservators in their Will. A court will need to appoint the guardian/conservator named in a Will to make decisions for the special needs individual.

Supplemental Needs Trusts

Parents and grandparents can create trusts for their special needs children or grandchildren with the assistance of an estate planning attorney with expertise and experience in planning for beneficiaries with special needs. This is preferable to leaving money directly to the beneficiary because Supplemental Needs Trusts (“SNT”) provide long-term management of the inheritance you leave to disabled beneficiaries while allowing them to qualify for needs-based government benefits. Special needs trusts can pay for and supplement medical and travel expenses, entertainment, pet care, and other expenses that can enhance a beneficiary’s quality of life especially when parents or grandparents are no longer around. The Trust creator names a Trustee to manage funds in the Trust who could be a professional or a trusted family member.

It is important to us at Samuel, Sayward & Baler to develop a plan that ensures that your family member with special needs is cared and provided for in the event you are unable to. It is also important to know about these basic legal tools so that you can be an effective advocate for the special needs child or relative in your life. Keep these things in mind when thinking about your family member with special needs and consult with an estate planning attorney with expertise in special needs planning to advise you about these important matters.

Attorney Brittany Hinojosa Citron is an associate attorney with Samuel, Sayward & Baler LLC in Dedham, Massachusetts, which assists and advises clients who have family members with special needs and focuses on trust and estate planning and elder law matters. 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 ssbllc.com or call 781-461-1020.

October, 2023

Five Things Your Child Should Do Before Going Off to College

August 3, 2022 by SSB

As hard as it may be to believe, August is upon us, which means that many of our clients’ children are going to be headed to college, some for the first time. As such, we thought it would be a good time to remind parents of the importance of certain legal documents to allow them to obtain information and assist a child in the event of an unexpected emergency.

Though your child will always be your baby, once they turn 18 they are considered adults in the eyes of the law. This means that, as a parent, you no longer have the legal authority to make decisions on your child’s behalf or to access their medical or educational information without permission. Assuming your child wants you to be able to assist with financial and medical decisions in an emergency and/or would want you to be able to speak with their health care providers and school, here are five things your child should do before they go away to college:

Sign a Durable Power of Attorney. A Durable Power of Attorney appoints one or more individuals to act on your child’s behalf with respect to financial matters without obtaining the approval of a court. By signing a Durable Power of Attorney granting one or both parents the legal authority to act on their behalf, your child is allowing you to deal with many legal and financial matters, such as banking snafus and tax issues, as well as to obtain access to information on credit cards and bank accounts.
Sign a Health Care Proxy. A Health Care Proxy designates a person to make health care decisions for your child if your child is are unable to communicate those decisions themself without obtaining the approval of a court. By signing a Health Care Proxy naming you as their health care agent, your child is allowing you to obtain medical information about, and make health care decisions for, them in the event they have a serious health issue and are unable to make their own health care decisions.
Sign a HIPPA Authorization. A HIPPA Authorization permits the release of your child’s protected medical information by their health care providers to the people listed in the document. By signing a HIPAA Authorization listing one or both parents, your child is allowing their health care providers to speak with you about their medical condition even if your child is still able to make their own health care decisions. This can come in handy if your child is in the school infirmary for a minor medical issue or is hospitalized with a more serious condition but still able to make their own decisions.
Sign a FERPA Authorization. A FERPA Authorization permits the release of your child’s protected academic and financial information by their college or university to the people listed in the document. By signing a FERPA Authorization listing one or both parents, you child is allowing their college or university to speak with you about their academic and financial information, which may include, for example, information about courses, financial aid, tuition, and disciplinary matters.
Attend Samuel, Sayward & Baler LLC’s College Document Bootcamp. If your child is looking for a convenient way to get all of the documents discussed in this article done before going away to college, they should sign up for our first ever College Document Bootcamp, which includes:

A Zoom webinar discussing these documents in more detail on August 11th;
A personal meeting via Zoom on either August 12th or August 16th with Attorney Megan Bartholomew where she will discuss your child’s specific situation with them and the provisions of the documents she will create for them; and
An in-person meeting with Attorney Bartholomew on August 19th, 20th, or 21st for your child to sign their documents.

The Zoom presentation on August 11th is free and open to everyone, but pre-registration is required. There is a fee of $550.00 for the other two meetings (including document preparation) and space is limited. See the flyer included with this article for more information. Of course, if your child can’t make the Bootcamp, they can always call our office to set up a separate appointment to discuss the preparation of their documents with Attorney Bartholomew or one of our other attorneys.

If your child is interested in participating in the Bootcamp or having their documents prepared, please have them call our office at 781/461-1020 or email Victoria Ung at ung@ssbllc.com.

Make Your Attorney-in-Fact Your Superhero

December 7, 2021 by Attorney Abigail V. Poole

Five Answers to Your Estate Planning Questions in Uncertain Times from An Estate Planning Attorney

April 7, 2020 by Attorney Maria Baler

In light of the COVID-19 pandemic, many people have questions about what will happen if they get sick or pass away. As estate planners, these are questions we think about and answer every day. Our goal as estate planning attorneys is for everyone to have an updated estate plan that will ensure you and your family are taken care of in the event of illness or death. However, there are many folks for whom estate planning has not made it to the top of their To Do list. Here are five answers to many of the questions we are hearing (over the phone and online), and some steps you can take in the short run to give yourself some peace of mind.

If I am hospitalized, who will decide what type of treatment I receive?

If you are able to make and communicate your own health care decisions, the doctors will look to you to make those decisions for yourself. If your illness is such that you are no longer able to make or communicate your own decisions, and if you have signed a Health Care Proxy, the doctor will look to the Health Care Agent you named in that document to make health care decisions for you.

Hopefully, if you are hospitalized, you already have a Health Care Proxy. If you do not have a Health Care Proxy, consider downloading, printing and completing the Massachusetts Health Care Proxy form here, and follow the instructions carefully. When the form is completed and signed, give a copy to your primary care physician and to each of your health care agents.

If you do not have a Health Care Proxy and your illness makes it impossible for you to create one, your family or the medical facility where you are resident may need to ask the Court to appoint a guardian for you. Your court appointed guardian would have the legal authority to make health care decisions on your behalf.

If you name a Health Care Agent in a Health Care Proxy, take the time to communicate your health care wishes to your Health Care Agent. There are many online tools available to facilitate these discussions. You can find a lot of good information and tools that will help you create a Health Care Proxy and discuss your health care wishes with your Health Care Agents on the Honoring Choices website. Additional tools can be found on the website of the American Bar Association’s Commission on Law and Aging. For discussions about end of life care, check out the Conversation Project.

Who will make financial decisions for me if I can’t make them for myself?

Financial decision-making is an important part of our daily life. If you are unable to make these decisions yourself, you will need someone to pay your bills, file your income tax returns, manage your investments, sell or mortgage real estate, take distributions from your retirement accounts, and a variety of other things that arise on a daily basis. A Power of Attorney designates a person to handle financial matters on your behalf. The designee is called your attorney-in-fact. Many people name their spouse or an adult child as their attorney-in-fact. A so-called “durable” Power of Attorney permits action even after the person who created the document becomes incapacitated.

The law requires that the Power of Attorney specifically authorize the actions your attorney-in-fact may undertake on your behalf. For this reason, Powers of Attorney are typically drafted by an estate planning attorney who will tailor the powers granted to address your particular situation.

If you do not have a Power of Attorney and you become incapacitated, your family may petition the court to appoint a Conservator for you. A court-appointed conservator will have the legal authority to manage your financial affairs under court supervision.

If I die and do not have a Will, what will happen to my assets?

If you pass away and have not signed a Will, the distribution of your assets depends on how your assets are owned, or whether a beneficiary has been designated to receive that asset at your death.

Assets that are jointly owned with another person (for example, your home that is owned jointly by you and your spouse) will (usually) pass automatically to the surviving joint owner.

Assets for which a beneficiary is designated (for example, your life insurance policies and retirement accounts) will be paid to the beneficiary you have designated to receive that asset at your death.

While joint ownership can seem like an easy way to ensure a person receives an asset at your death, keep in mind that adding a joint owner to an asset carries with it tax, ownership, liability and other implications, and should not be done before consulting with an attorney. Beneficiary designations are also best made in consultation with your estate planning attorney to ensure the designations do not disrupt the other provisions of your estate plan.

If you do not have a Will, for assets owned in your individual name without a joint owner or beneficiary, those assets will be distributed at your death according to the Massachusetts intestate laws.

If you are married, all of your assets will pass to your spouse if (a) you have no children or parents living, or (b) all of your children are also your spouse’s children, and your spouse has no children that are not your children.

If you are married and have no children, but you have parents living, your spouse will receive $200,000, plus three-quarters of the remaining assets, and your parents (or your surviving parent) will receive the rest.

If you are married and you have children who are also your spouse’s children, and either you or your spouse has a child who is not your spouse’s child, your spouse will receive $100,000, plus one-half of the remaining assets, and your children will receive the rest.

Without a Will, if you are not married, all of your assets will go to your descendants. If you have no descendants, all of your assets will go equally to your parents, or to your surviving parent. If you have no descendants or surviving parents, your assets will go to your siblings.

If a person is under the age of 18, any assets they inherit cannot be legally owned by them. The court will appoint a Conservator to manage those assets for the minor’s benefit until the minor reaches age 18, at which time the minor will receive ownership of the assets.

What will happen to my minor children if I pass away?

If you don’t have a Will appointing a Guardian for your minor children, the court will appoint a Guardian who will have physical custody of your children, make decisions about where your children will live and go to school, their religious upbringing, and also make health care decisions for them.

If you have a Will, your Will will name the people you wish to be appointed as Guardian of your children. In all cases, the Court will determine who to appoint as Guardian based on what the Court determines is in the best interests of the child at the time.

Parents of minor children should also have a document that appoints a temporary guardian who will have authority to take temporary physical custody of a child until the permanent Guardian can be appointed by the Court.

If you have young children, consider creating a letter of instruction that provides important information about each child – the name and contact information for the child’s physician, allergies, other important medical information, food preferences, schedule, friends, activities, and other things you think someone should know if they had to care for your child unexpectedly.

Where will my family begin if something happens to me?

One of the most important things you can do is get organized. Take the time to identify a place in your house where you keep important information and documents and let trusted family members know where that is. Consider a well-organized filing cabinet with clearly labeled folders and treat that as your estate planning repository. Include copies of your legal documents such as Wills, Trusts, Powers of Attorney and Health Care Proxies, as well as the contact information for your estate planning attorney, accountant and financial advisors. Also included should be recent account statements, life insurance and homeowner’s insurance policies, retirement account information, etc.

Compile and include a list of your assets (bank accounts, investment accounts, annuities, life insurance, retirement accounts, etc.) that includes the institution where each account is located, the account number, your contact person at that institution (if any) and their contact information. Also include a list of usernames and passwords for any important online accounts – financial, photo storage, email, social media, document storage accounts. Keep these lists updated and in the place where you keep other important papers so that they can be found.

If you have a safe deposit box, make sure at least one other trusted family member’s name is on the box so that they will have access after your death. This is especially important if your original Will or other estate plan documents are in the box.

A comprehensive estate plan drafted by an estate planning lawyer will address all of these issues – name guardians for your children, specify how your assets will be distributed at your death, designate decision-makers for financial and health care decisions if needed, and so much more. If you are concerned about not having legal documents in place, contact an estate planning attorney. Resist the urge to create these documents yourself. Whether on the back of a napkin or online at Legal Zoom, there is no substitute for the advice of an experienced attorney who will provide advice tailored to your particular family situation, your assets, and the tax and probate laws of your state of residence. If you are feeling concerned about the state of your estate plan, or lack thereof, give your local estate planning attorney, including our office, a call – we are here to help.

Maria Baler, Esq. is an estate planning lawyer and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and currently serves on the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, please visit www.ssbllc.com or call (781) 461-1020. 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.

April 2020

“I Just Need a Will”

December 15, 2019 by Attorney Suzanne Sayward

Potential clients sometimes call our estate planning and elder law firm to make an appointment to see an attorney stating that they “just need a Will.” Ironically, a Will is often the least needed estate planning document. For many people, their estate will pass to their intended beneficiaries without a Will exactly as it would if they had a Will. That’s because the Massachusetts intestate law that determines the people to whom an estate will be distributed in the absence of a Will, is in keeping with the distribution and inheritance planning wishes of many people.

Massachusetts law regarding wills and inheritance provides that if a member of a married couple dies without a Will and all of the couple’s children are children of the marriage, then the estate of the deceased spouse will pass entirely to the surviving spouse. If the surviving spouse later dies without a Will without having remarried, her estate will pass to their children in equal shares. Further, many married couples own all of their assets jointly (their home, bank accounts, investment accounts) or have beneficiaries designated to receive their assets (IRAs, 401Ks, life insurance, etc.). In that case, no assets pass under the terms of the Will and instead pass by operation of law (joint ownership) or via the ‘contract’ made with the financial company or life insurance company when that beneficiary designation form was completed.

Of course, for people who do not have a situation that fits neatly under the intestate statute, a Will, and often a Trust, is vital. This includes blended families, people who have beneficiaries with disabilities or special needs or beneficiaries who struggle with addiction or beneficiaries who are spendthrifts. It also includes those with minor children and those who want to reduce estate tax or provide creditor protection for the inheritance they leave their beneficiaries.

Frankly, the essential estate plan documents that everyone over the age of 18 should have in place include a durable Power of Attorney and a Health Care Proxy. These documents appoint someone to pay bills, manage assets, deal with the insurance company and make medical decisions if the person making those documents has an accident or gets sick and cannot do those things for himself. The law does not make it easy for someone to do these things in the absence of Power of Attorney or Health Care Proxy. In the case of incapacity without those documents in place, the law requires a court proceeding to appoint a conservator to manage an incapacitated person’s finances and another court proceeding to appoint a guardian to make medical decisions. These are expensive, time-consuming, and public proceedings and best avoided.

Give us a call us at 781-461-1020 and let us help you create the right estate plan (even if you just need a Will) for your family.

Attorney Suzanne R. Sayward is a partner 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. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. 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.

December, 2019

In Estate Planning, Preparation Is Key

November 15, 2019 by Jennifer Poles

It is everyone’s hope that they will die after they have managed to get everything in order so that their family will have an easy time of it and not be left picking up the pieces. Here are some things to put on your Estate Planning To Do list, to make it easier on your family if you depart this world before tying up all the loose ends:

Identify a place in your house where you keep important information and documents and let trusted family members (or personal representatives) know where that is. I suggest a well-organized filing cabinet with clearly labeled folders containing important information and copies of your legal documents such as wills, trusts, powers of attorney and health care proxies.
Create a list of your assets that includes the institution where each account is located, the account number, your contact person at that institution (if any) and their contact information. Include on this list bank accounts, investment accounts, annuities, life insurance, retirement accounts, etc. Keep this list updated, and in the place where you keep other important papers so that it can be found.
If you have original stock certificates, savings bonds, cash or other valuables in your house, make a note of where those items are kept so that they are not overlooked or inadvertently thrown out.
Don’t forget digital estate planning. Create a list of usernames and passwords for any important online accounts – financial, photo storage, email, social media, document storage accounts. Keep this list updated and in the place where you keep other important papers so that it can be found.
If you have young children or a child with special needs, consider a letter of instruction that provides important information about your child – the name and contact information for their physician, allergies, other important medical information and other things you think someone should know if they had to care for your children unexpectedly.
Review and update beneficiary designations on life insurance and retirement accounts in consultation with your estate planning attorney to ensure the designations do not disrupt the other provisions of your estate plan.
Do your best to keep your income tax filings up-to-date so that your family will not have to try to piece together that information in order to file income tax returns after your death. This is a painful and expensive process that can lead to lingering liability for family members.
If you have a safe deposit box, make sure at least one other trusted family member’s name is on the box so that they will have access after your death This is especially important if your original Will or other estate plan documents are in the box.
And finally, make sure your estate plan documents are up-to-date, and that you have left instructions for your family regarding where to find them, and the contact information for your estate planning attorney.

Tackle one of these tasks every month, and within a year you will be leaving your family well-prepared if something unexpected occurs.

November, 2019

An Estate Planning Lesson from Roseanne Barr?

June 15, 2018 by Attorney Suzanne Sayward

Regardless of whether you agree or disagree with the decision to cancel the Roseanne show following Roseann Barr’s racist tweet of last month, I think everyone can agree that her failure to be thoughtful about her actions led to her downfall and the downfall of her very successful show. While there may be debate about the appropriateness of the punishment Roseanne received (too harsh? too light?), most people feel badly for Roseanne’s co-workers who will pay the price for her bad behavior by losing their jobs. They are no doubt angry and feel betrayed by her. The same is true when it comes to estate planning strategies; we betray the ones we care about when fail to follow estate planning basics. Failure to act thoughtfully with respect to your estate plan can leave the people you love feeling angry and betrayed too.

In many ways, creating an estate plan is not something you do for yourself; it is something you do for the people you love. Setting up wills, trusts and estate plans are crucial for your legacy. If you become incapacitated because of an accident, a stroke or an illness and you have not created a Durable Power of Attorney and a Health Care Proxy, your family is going to have a difficult time helping you. Without these basic estate planning documents no one, not even your spouse, has the legal authority to gain access to your assets or to make decisions about your care. One or more family members may need to go to court to be appointed as your conservator and/or guardian so that bills can be paid, investments can be managed and proper care can be arranged. This will cause your family members stress and take hours of their valuable time to do things that could have been avoided with some advance planning.

Likewise, if you die without a Will, it will be more difficult and expensive for your family to settle your estate. Even worse, your estate may not be distributed in the way you thought it would or how you wanted. These unintended consequences can leave bad feelings among survivors that can last for years. Proper estate planning could also be considered good inheritance planning. It is not uncommon for clients to tell me how their parents failed to do any planning and as a result the house was lost to long-term care costs, or a second spouse ended up with the treasured family cottage, or there were tens of thousands of estate taxes payable that could have been avoided with a little bit of advance estate planning.

In my experience, no one wants to leave their family with a mess of complex estate planning issues. Yet failing to act thoughtfully by creating an estate plan and keeping it updated often means a mess is what is left. Roseanne’s action hurt many people – people she had no intention of hurting. Don’t let failing to plan leave your loved ones with the bad feelings that unintended consequences so often produce –and of course, think before you tweet!

June, 2018

What does a Snowstorm have to do with Estate Planning?

March 26, 2018 by Attorney Suzanne Sayward

The snows and no-snows of March set me to thinking about disruption. When I was a kid, waking up to a foot of snow was one of the most joyful events of my life – especially if it happened on school day. As an adult, I have the opposite reaction. In fact when I looked out the window on March 22^nd and saw that the meteorologists’ prediction of a huge overnight snowfall was a complete bust, I was filled with delight. In thinking about my two-selves’ different reactions to snow, I came to the conclusion that it is all about disruption. As a kid, I loved unexpected disruptions – a snow day, a fire drill, a fight at recess. As adults we are not so fond of disruptions – some people even dislike holidays! In many ways, undertaking estate planning is about planning to minimize disruption when the unexpected happens. The events that we are planning for when we create an estate plan are sickness and death. If you, your spouse, your parent or your grandparent, gets sick or has an accident and is incapacitated as a result, that is a very disruptive event not only to person who is incapacitated but also to family members who are caring for the ill person. Decisions about health care will need to be made, bills will need to be paid, maybe the house will need to be sold. These added tasks are disruptive to the lives of the people who must take them on, but it is even worse if the incapacitated person does not have a Health Care Proxy and Durable Power of Attorney that legally authorize people to make health care decisions, pay bills, deal with real estate, file tax returns, etc. If no such documents exist, then family members are forced to petition the probate court for guardianship and/or conservatorship in order to obtain the legal authority to make decisions and take action. Believe you me, there is nothing quite so disruptive as having to deal with the probate courts – not to mention the expense involved in any court proceeding. Similarly, if someone dies without a Will or Trust, the cost, time and aggravation of settling the estate are multiplied – more disruption! You can reduce the disruption caused by incapacity and death by getting your affairs in order and creating (or updating, if it’s been a while) an estate plan. As to the next snow storm….my advice, flee to Florida!

March, 2018

Give the Gift of an Estate Plan – Yours!

December 18, 2017 by Attorney Suzanne Sayward

In this season of giving, I thought it would be a good idea to chat about one of the best gifts you can give your family. It is not a fancy vacation or a 60-inch TV – it is the gift of an estate plan – yours. When you create an estate plan (i.e. your Will, Durable Power of Attorney, Health Care documents and perhaps a Trust), you are doing something important and valuable for yourself by making sure that your wishes are carried out upon your death or in the event you are incapacitated. You are also doing an enormous favor for your family who will be left behind to pick up the pieces in the event of your incapacity or upon your passing.

By creating a Durable Power of Attorney, Health Care Proxy, and related documents which empower someone to pay your bills, deal with your insurance, take distributions from your retirement accounts, and make decisions about your medical care should you become incapacitated, you are avoiding the need for your family members to seek a guardianship or conservatorship in the Probate Court.

By creating a Will you are making sure your wishes about the distribution of your assets at death are clear, and that provisions that will streamline the Probate process are in place. If you take the further step of creating a Trust, which will allow your assets pass to your family outside of Probate, you are greatly reducing the time, cost and aggravation associated with the settlement of estates. You are also preserving your privacy which can protect your estate from claims by creditors, former business partners, or ex-spouses.

In my estate planning and elder law practice I see many families in crisis either when someone has taken ill or when a loved one had passed away. In situations where planning has been done, family members are in a far better position (in terms of direction, time, and cost) than are those where no planning was done.

This holiday season, treat yourself and your family to the gift of your estate plan. You will gain peace of mind of knowing that you have a plan in place that will make things as easy as possible for the family members you leave behind.

December 2017