Estate planning attorneys have the opportunity to speak to people at all stages of life. Some of the most profound conversations we have are with clients who have serious illnesses or are close to death.  They often have great clarity about life and what is important.  Many of them also have definite thoughts about how they wish to be cared for at the end of their lives, and care deeply that their wishes are heard and carried out.

We all have the right to make our wishes known about the type of end-of-life care we want. Making your wishes known while you are well is important as an accident or an unexpected illness may cause you to lose the ability to express your care preferences. This April marks the 10^th anniversary of National Healthcare Decisions Day. Here are five ways you can ensure your care preferences are clearly documented and honored:

1. Create a Health Care Proxy. If you are over the age of 18, make sure you have signed a Health Care Proxy that designates a person you choose (your Health Care Agent) to make health care decisions for you if you become unable to make or communicate your own health care decisions.  Give your doctor and your Health Care Agent a copy of your Proxy. Then, have a conversation with your Health Care Agent about your feelings about health care and the type of care you would want in certain situations.  See No. 5 below for some resources to get you started.  If you are hospitalized, remember to bring your Health Care Proxy with you to the hospital. This will ensure you are not asked to sign another Proxy that will revoke the Proxy you currently have in place and that may not be as comprehensive.

2. Assemble a Care Committee. For those who have very definite ideas about where and how they wish to be cared for, consider assembling a Care Committee to ensure your care wishes will be carried out, particularly if you have a chronic illness.  This group may consist of your Health Care Agent, a professional care manager, your attorney, your physician, the person you have named to make financial decisions for you if you are incapacitated, and perhaps your financial advisor.  Choose the participants, have discussions with them about your care preferences, and develop a plan that is financially realistic. Have a discussion with your Care Committee periodically to modify the plan as your needs and wishes change.  Think of your Care Committee as a team that can help your Health Care Agent carry out your wishes as necessary.

3. Sign a Living Will. There are many advance directives that can be used by clients to express care preferences. A Living Will typically expresses a general preference that no extraordinary measures be used at the end of life.  In Massachusetts, Living Wills are not legally binding, and your physicians will not act based upon your Living Will (only at the direction of your Health Care Agent).  However, a Living Will can serve as evidence of your wishes that will guide your Health Care Agent in making decisions about end-of-life care.

4. Advance Medical Directives. A Medical Directive can be used to express care preferences in specific medical situations.   Do Not Resuscitate or Do Not Intubate orders are medical orders that a doctor will put in place at a patient or Health Care Agent’s direction in appropriate circumstances.  In Massachusetts, a MOLST (Medical Orders for Life Sustaining Treatment) form is a useful document created by patient and doctor together that includes medical orders for care preferences, including resuscitation, ventilation, intubation, dialysis, artificial nutrition and hydration, and whether or not you should be transferred to a hospital.  This initiative is known as POLST (Physician Orders for Life Sustaining Treatment) on a national level.

5. Use the Available Tools. There are many Massachusetts and national organizations working to increase awareness of the value of advance care planning and to encourage people to express their care preferences.  The Massachusetts Coalition for Serious Illness Care and related organizations have designated April as Massachusetts Healthcare Decisions Month, and has tools and resources on its website. Honoring Choices is another Massachusetts organization bringing information about health care decision-making and outreach to many local communities, as well as helping people to create a Health Care Proxy and express their health care preferences.  The Conversation Project  is dedicated to making it easier for people to talk about their wishes for end-of-life care.  Both Honoring Choices and The Conversation Project have starter kits on their websites that make it easy to get started.

As part of Healthcare Decisions Month, several Boston-area organizations will also be hosting Before I Die,  a global public art project that invites people to share their personal aspirations in public, reflect on what’s most important to them in life and how they contemplate death.  Use whatever tool or inspiration works for you, and find a way to express your wishes about end-of-life care to the people who will make those decisions for you.

April 2017

© 2017 Samuel, Sayward & Baler LLC

Estate planning attorneys work with clients every day to ensure their wishes are carried out in the event of illness or death. While it’s not pleasant to think about, planning ahead will make it easier for your loved ones during difficult times. An estate planning attorney can help you create documents (such as a Will and/or Trust) that provide instructions about distribution of your assets at death, minimize probate expenses and estate taxes, name guardians for minor children, and manage inherited assets for your beneficiaries. An estate planning attorney can also help you plan for incapacity by creating powers of attorney and health care documents that allow individuals you choose to make financial and health care decisions on your behalf.

Some estate planning firms advise clients on elder law matters — how to plan for long-term care (both pre-planning and addressing a crisis situation when the need for care is imminent), how to pay for that care (including whether you are eligible for public benefits such as Medicaid benefits), and whether advance planning is appropriate.

Here are five reasons you should call an estate planning attorney.

1. You are a parent. If you are the parent of a minor child (defined as under the age of 18 in Massachusetts) you should have a Will that names a legal guardian for your child. Parents of minor children and young adults should also consider creating a Trust that will hold and manage assets for your child’s benefit, to ensure your child does not receive control of inherited assets at age 18, and to designate a trusted individual to manage those assets for your child until your child reaches an age that you deem is appropriate. If an adult child has substance abuse, gambling, or creditor problems, or is in a bad marriage, it may be appropriate to hold assets in trust to protect the assets and ensure they will be available for the child’s benefit in the future.

2. You (or your spouse) receive a serious medical diagnosis. If you have a serious illness, sitting down with your estate planning attorney may not be at the top of your list. However, it is important to plan while you are competent to make decisions about your future. If you or your spouse need long-term care or anticipate the need for care in the future because of physical or mental decline, an estate planning attorney with knowledge of elder law can advise you about  estate plan documents you should have in place and about your options for care and payment.  Make it a priority to become educated about your options and work with an attorney to make a plan for the future.

3. You are getting married or divorced. Marriage and divorce both impact your existing estate plan and necessitate changes to your documents. If you do not have an estate plan in place, these events provide a good reason to plan. An attorney can also help you review asset ownership and beneficiary designations to ensure a new (or ex-) spouse is provided for (or not) as appropriate. Prior to marriage, an estate planning attorney will help you determine whether a prenuptial agreement is appropriate. These agreements can protect assets owned prior to marriage (such as an interest in a family business or vacation home) or assets that are inherited during the marriage in the event of death or divorce.  Prenuptial agreements are also important in second marriages to protect assets for children from a prior marriage.

4. You have a spouse, child, grandchild or other beneficiary who has a disability. If you wish to leave assets to a disabled individual you need to take special care with your estate plan documents. Leaving an inheritance to a disabled beneficiary may cause a loss of benefits, including medical benefits. Leaving an inheritance in a properly drafted Trust can preserve eligibility for benefits and protect assets for the benefit of the disabled beneficiary.

5. You have not reviewed your plan in a while. If you have a Will, Trust or other estate plan documents, it is important to keep your plan current. If it has been more than five years since you have met with an attorney to review your plan, take the time to do so. A few simple amendments to your documents may be all you need to bring your plan up to date. Even if more significant changes are needed, make those changes to ensure your plan will work as you intend, save time and expense, and minimize taxes — both for your benefit and for the beneficiaries of your estate.

You can find more information about these topics, including many articles on estate planning and elder law at www.ssbllc.com.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, 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.

February 2017

© 2017 Samuel, Sayward & Baler LLC

Many of my clients have definite ideas about how they want to be cared for if they are ill later in life.  I hear clients expressing very clear wishes about where they want to live and what type of care they wish to receive and do not wish to receive.    With planning and communication, you will have greater certainty that your wishes will be carried out. Here are five ways to plan ahead for the type of care you envision for your future:

1. See your Attorney. Your estate planning attorney can help you create legal documents that can go a long way toward ensuring you will receive the type of care you want.  The first is a Power of Attorney that will appoint a trusted person to handle your financial affairs if you are unable to do so.  Your appointed agent will be able to use your assets to pay for whatever care you may need.  The second is a Health Care Proxy that names a person to make health care decisions for you if you are unable to do so.  The third is a HIPAA Authorization that will list individuals who have permission to receive information from your physicians and others about your medical care.

2. See your Doctor.   A conversation with your physician is an important step in deciding what type of care you wish to receive and clearly expressing your wishes about your care preferences.  There are many medical directive forms available that allow you to be very specific about the care you would like to receive in particular situations, including end of life care.   It is wise to complete these forms and express preferences after you have had a conversation with your doctor in order to understand the options and the implications of each care choice.  The care you choose may be very different from that of another person, based on your age, your health, your personal experiences, and your personal preferences.  Making clear and educated choices about your health care now will allow your Health Care Agent to make health care decisions for you based on your known wishes, rather than having to guess about what your wishes may be.

3. Educate Yourself About Housing Options. Where do you want to live as you age?  Many people are firm in their desire to remain at home for as long as possible, even if they require help to do so.  There are more resources than ever to receive care at home.  Individuals called Aging Life Care Managers (also sometimes called Geriatric Care Managers) can assist in evaluating the type of assistance needed and coordinating those who will provide care or assistance at home.  There are also many options for those who do not wish to stay in their home as they get older.  Learn about the housing options available in the area you wish to live and the cost.  If you are a person who enjoys being socially active, a continuing care retirement community may be a good choice.  There, you can have your own apartment, but join others for activities or for meals if you choose.  If you want a quieter setting, a senior housing complex where everyone has their own apartment may be preferable.  If you need assistance with things like cooking, bathing, dressing or transportation, an assisted living facility may be appropriate.  If you need skilled care, nursing home care may be required.

4. Understand how you will pay for care. If you need assistance or care at home, or in an assisted living facility or a nursing home, there will be a cost associated with that care.  Care costs may be paid with your monthly income (Social Security, pension) or your assets (proceeds from a home sale, cash, investments, etc.).  If you have long-term care insurance, those benefits can be used to pay or defray the costs of care.  If you do not have assets or insurance to pay for care, you may be eligible to receive Medicaid benefits, which are the public benefits that pay for long-term care (at home or in a nursing home) for individuals who are unable to pay the cost of their own care.  Eligibility for Medicaid benefits can be complicated.  If you think you may need Medicaid benefits to pay for care in the future, take the time now to consult with an elder law attorney and understand the eligibility rules and how they apply to your particular situation.

5. Identify and Inform your Team. No matter how certain you are about the type of care you wish to receive, you can be sure your wishes will not be carried out if no one but you knows what they are.  Plan in advance by identifying a team of individuals who will help you carry out your wishes – your attorney, your financial advisor, your Health Care Agent, your attorney-in-fact, and an Aging Life Care Manager are all important members of the team.  Involve these individuals early on in your planning process. Express your wishes to them clearly and repeatedly.  Share with these individuals the health care documents your attorney has prepared or those you have completed with the assistance of your physician so they can ask you questions and get a good sense of your wishes before a crisis occurs.

Take these steps while you are able to put appropriate legal documents in place, express your housing and care preferences, and communicate those preferences to the people who will help you carry them out.  Your family will thank you for being proactive and giving them a roadmap for your future care.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, 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.

December 2016

When it comes to long-term planning, everyone’s family and financial situation is unique. There is no “one-size-fits-all” formula that applies to the masses, which is why it is so important to obtain advice from an experienced estate planning attorney about your particular circumstances.  However, there are some basic estate plan documents that every adult should create and update every three to five years, or whenever a major life change occurs.  I often refer to these documents collectively as “the-don’t-leave-home-without-it” plan. Here are the five essential estate plan documents.

1. Durable Power of Attorney. A durable Power of Attorney is used to appoint a person to act on your behalf with respect to your financial affairs. The person who creates the Power of Attorney is called the “principal,” and the person who is appointed to serve is called the “attorney-in-fact.”   The term “durable” means that the Power of Attorney will remain in effect even if the principal becomes incapacitated.  The purpose of a durable Power of Attorney is to authorize someone to handle tax matters, sign checks, access financial accounts, sell a car, make decisions about investments, manage retirement accounts and enter into contracts on behalf of the principal most often in a situation where the principal is ill, injured or incapacitated.  In situations where a person is incapacitated and has not created a durable Power of Attorney, family members must file a petition with the Probate Court and ask to be appointed as the incapacitated individual’s conservator in order to obtain authority over financial assets and decision making.  This is expensive, time consuming, and requires a public proceeding. Plus, the Court may appoint someone who you would not have wanted to serve in that position.

2. Health Care Proxy. A Health Care Proxy is the legal document used in Massachusetts to appoint a person to make health care decisions on behalf of another.  The person signing the Health Care Proxy is called the “principal.”   The appointed person is called the “Health Care Agent.” It is a good idea to appoint one or more alternate health care agents to serve in case the primary agent is unavailable. The Health Care Proxy is by law a “springing” document.  That means that the authority of the Health Care Agent does not arise until the principal’s attending physician determines that the principal lacks the capacity to make or communicate health care decisions.  Once that determination is made, the Health Care Agent will have the authority to confer with doctors, nurses and other caregivers, have access to medical records, and will be able to make all medical decisions.

3. HIPAA Authorization.   As noted above, the authority of the Health Care Agent to make decisions about your care, gain access to your medical records, or obtain information from your doctor or other caregivers arises only after your physician has made a determination that you are not able to make or communicate health care decisions yourself.  While it makes sense that no one should be able to make health care decisions for someone who is capable of making his own decisions, when someone is ill or elderly, it can be helpful if family members are able to consult with doctors and other caregivers. However, the federal Health Insurance Portability and Accountability Act (HIPAA) imposes monetary fines on caregivers who disclose medical information without authorization to do so.  While this sounds like a good idea, unfortunately it can result in family members being denied any information about a loved one’s status.  A HIPAA Authorization is used to list the people you would want your doctors to speak with in the event you are ill.

4. Last Will and Testament.    It may be surprising to readers that I did not list a Will as the number one “don’t-leave-home-without-it” document.  The fact is, for many people, a Will is not the most important estate plan document.  Don’t misunderstand me – I definitely advise clients that they should create a Will as part of their estate plan.   However, a Will only controls the distribution of probate assets, which are accounts or property titled in a person’s name alone and for which there is no designated beneficiary.  Many married couples have no probate assets when one spouse dies because all of the assets are either jointly owned, held in a trust, or the surviving spouse is named as the beneficiary of assets such as IRAs, life insurance and annuities.   Even if you plan to leave no probate assets, a Will is still recommended, as you may not be able to control whether you have probate assets. For example, your employer may owe you salary or vacation pay, your estate may receive a refund on your car insurance or health insurance premiums, you may be owed money on a contract, etc.  Also, your Will is the document used to appoint the Personal Representative (formerly called Executor) of your estate.  Your Personal Representative is usually charged with the task of distributing your tangible personal property and filing final income tax returns.  Lastly, if you have minor children, you would name the individuals who you want to serve as guardian and conservator of your children in your Will.

5. Living Will.    A Living Will is the document used to express a person’s wish that no extraordinary measures or artificial means be used to prolong life in circumstances where the individual is suffering from a fatal or terminal illness and where such measures would not improve the quality of life.  We do not have a Living Will law in Massachusetts, meaning that your physician will not act on the wishes you express in your Living Will, but will only take direction from your health care agent named in your Health Care Proxy regarding these types of decisions.  Despite that, many people choose to sign a Living Will because they want to give their health care agent and other family members guidance regarding end-of-life decisions if they are not able to make those decisions for themselves.

While no one likes to think about these types of situations, it’s important to keep in mind that creating or updating these documents now will help alleviate worry later on and allow you to focus on your loved ones — not unfinished administrative work.  Everyone’s situation is different and your estate plan is no doubt very different than your neighbor’s or your sister’s plan. Consult with a qualified estate planning attorney to make sure these documents are reflective of your own needs, wishes, and goals.

Attorney Suzanne R. Sayward 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.  She is a partner with the Dedham firm of Samuel, Sayward & Baler LLC.  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. 

May 2016

A Health Care Proxy is one of the most important estate plan documents you can create.  It names an individual to make health care decisions for you in the event a doctor determines that you are unable to make or communicate your own health care decisions.  Under those circumstances, the Health Care Agent you name in your Health Care Proxy will step into your shoes and make health care decisions on your behalf.  The Agent is required to make decisions based on the agent’s understanding of your wishes.

A Health Care Proxy is crucial in making sure you receive the type of care you want, and that decisions about care, medications, location of treatment, etc. are made by someone you trust and have chosen in advance.  If you are unable to make your own health care decisions and you do not have Health Care Proxy, a guardianship proceeding will be required in the Probate Court so that the Court can appoint a legal guardian who will have the authority to make health care decisions for you.  As you might suspect, this is a time consuming, expensive, and public process.  Worst of all, it may mean that someone whom you would never have chosen to make these types of decisions is given control over your health care.

A Health Care Proxy created by your estate planning attorney will usually be more comprehensive than one you create using a basic Proxy form obtained online or provided by your physician.  These more comprehensive Proxies often name multiple agents in succession to address the possibility that the first-named Agent is unable to act, state your wishes about organ donation, and give extensive and important additional powers to the Health Care Agent which allow your Agent to make decisions beyond what the basic Proxy may permit.  This additional authority can help avoid a guardianship proceeding to seek authority to take health-care related actions that are not authorized in the basic Proxy form.

If you have a Health Care Proxy it is important that you give a copy of it to your primary care physician, and that you bring a copy of your Proxy with you when you are admitted to the hospital. Hospital admissions folks often ask patients if they have a Health Care Proxy, and if the patient says ‘no’, the admissions clerk offers them one to sign on the spot.  If you have an existing Proxy, your doctor or the hospital will gladly accept that document.  However, if you forget that you have created a Proxy, or forget to bring the document to the doctor or hospital, you will be asked (or in the case of hospital admission, required) to complete a new Proxy, which will automatically and perhaps inadvertently revoke your existing Health Care Proxy.  This is a bad result since the Proxy you carefully and thoughtfully prepared and which is far more comprehensive than the hospital or doctor’s form is invalidated by the hospital’s form.

Any time you are seeing a doctor to whom you have not already provided your Proxy, going into the hospital, even if it’s only for a test, or beginning a course of treatment such as physical therapy, bring a copy of your Health Care Proxy with you and ask the provider to make it part of your medical records.  This is the best way to insure that the person you have selected to make health care decisions for you will be able to so if necessary.

January 2016

Estate planning attorneys try not to feel unloved or neglected. We realize that, although our clients like us, they don’t always enjoy talking to us. The conversations we have with our clients are sometimes difficult, filled with talk of illness, death, taxes, and challenging family situations. These are emotional topics that many people would rather not discuss, and instead ignore and hope the issues will resolve themselves. However, as estate planning attorneys we are able to see firsthand how the advice and guidance we provide makes a difference in the lives of our clients and their families.

Here are five reasons you should call your estate planning attorney:

1. You are diagnosed with a serious illness. If you are diagnosed with a terminal or chronic illness, sitting down with your estate planning attorney to talk about a time when you may become unable to make decisions for yourself or may pass away is probably not at the top of your bucket list. However, now is exactly the time you should be having those conversations, as difficult as they may be. Many types of illnesses will result in a period of incapacity. It is important to plan for your incapacity and death while you are still competent to make decisions about your future. A priority is to sign documents such as a power of attorney and health care documents that will ensure your health care wishes are known and trusted people are named to make financial and health care decisions on your behalf if necessary. Your attorney can also advise you about whether ownership of assets or beneficiary designations should be changed, or estate plan documents should be updated.

2. There is a death in the family. There is generally no need to immediately call your attorney following a death in the family. However, it is important to touch base with your attorney shortly after the funeral to determine what actions may need to be taken. Real estate may need to be secured, cleaned out or sold. Personal property may need to be distributed. If the deceased owned assets in his or her individual name, a probate proceeding may be required to transfer those assets to the deceased’s heirs. If the deceased created a trust, a successor Trustee may need to be appointed and the trust administered according to its terms. Depending on the size of the estate, an estate tax return may need to be prepared and filed, and estate tax may be due. Although an estate tax return is not due until nine months after death, there can be significant work involved in identifying and valuing the deceased person’s assets before the return can be prepared. Your attorney can assist with all of these matters and is also likely a good resource for referrals to individuals who can assist with non-legal tasks, such as the clean-out of a home or the sale of real estate.

3. Your child is (or You are) engaged to be married. A child’s engagement is often a joyous time. After the initial excitement has subsided, contact your estate planning attorney about whether you should be encouraging your child to enter into a prenuptial agreement prior to marriage. Prenuptial agreements control the division of a couple’s assets in the event of divorce or death. They can be especially effective to protect assets one member of the couple owns prior to marriage (such as an interest in a family business or vacation home that may have been gifted by parents) and to protect inherited assets if a divorce occurs after the child has inherited assets from her parents. The timing of a prenuptial agreement can affect its validity. The further in advance of the wedding the agreement is negotiated and signed, the better. Discussing a prenuptial agreement is not easy when your child may be giddy with excitement over her upcoming wedding and you want to talk about death and divorce. However, a properly drafted and negotiated prenuptial agreement is a family’s best defense against losing important family assets in the event of a divorce. Prenuptial agreements are also important in second marriage situations where each member of the couple has assets they will be bringing to the marriage and may have children from a prior marriage to whom they would like to leave an inheritance.

4. Your child is experiencing difficulties. For many parents, it is difficult to confront the reality that a child may have substance abuse, gambling, or creditor problems, or may be in a bad marriage. When these issues arise, it is appropriate for parents to take a hard look at their own estate plan and make changes if necessary. Consider whether the child is still an appropriate candidate to serve in a fiduciary capacity or if the child’s inheritance should be held in trust rather than distributed outright in order to protect assets for the child’s benefit. Your estate planning attorney can advise you about your options and help you decide what is best for your family’s situation.

5. Minor Changes may still warrant a Conversation. There are many less significant life events that still warrant a conversation with your estate planning attorney. The birth of a child or grandchild should prompt you to check whether the new family member will automatically be included as a beneficiary of your estate (if that is your intention), or whether changes to your documents are necessary. The purchase of a primary residence or a vacation home may necessitate updates to your power of attorney. A conversation about whether or not to hold the new property in trust is also advisable, especially if the property is located in another state.

Even if your life is relatively uneventful and there is no new reason to talk to your estate planning attorney, keep in mind the importance of keeping your plan up to date. If it has been more than five years since you have met with your estate planning attorney, take the time to sit down with your attorney to review your plan and ensure that it is consistent with your current goals.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, 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.