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.

Thanksgiving is often a time when family members both young and old come together to eat too much good food and watch too much football.  What better time to start a discussion about estate  planning than Thanksgiving, when the family is gathered together?  Here are five questions to get the conversation started.

1. Have you planned for how you will pay for long-term care if it’s needed? Many children find it awkward and uncomfortable to bring up the subject of money with their parents.  However, planning ahead for the possibility that a parent will need long-term care is crucial.  The cost of long term care, whether at home, in assisted living, or in a nursing home is very high.  The monthly cost of a nursing home in Massachusetts is around $12,000 and the cost of round-the-clock care at home is often more than that.  Long-term care costs are not generally covered by health insurance (Medicare).  These costs are generally paid through a combination of: 1) paying privately for care; 2) long-term care insurance; or 3) Medicaid.   Paying privately means that the care recipient simply writes a check for the cost of the care each month.  Long-term care insurance is insurance purchased for the purpose of paying for long-term care.  Medicaid is the state and federally funded program that will pay for long-term care if a person meets the financial eligibility criteria of the program.  In general, this means having not more than $2,000 in so-called countable assets.  If you are over age 60 and have never thought about how you would pay for long-term care, now is a good time to explore your options.

2. Do you have a Will and Trust to protect your young children if you die? It’s not just older folks who need to think about planning for the future.  Many young parents put off estate planning because they’re too busy, they can’t agree on who should be named as guardian for their minor children, or their budgets are tight.  However, as parents our job is to protect our children.  Making sure that your children are not the subject of a protracted custody battle in the event of your death by choosing the person, or people, who would raise your children if you could not, is a fundamental duty of all parents.  Further, many people are surprised to learn that the law considers 18 the perfect age at which to receive an inheritance, regardless of the amount.  For many parents, the thought of their child receiving $5,000, never mind $50,000 or $500,000, at age 18 is terrifying.  A trust is an excellent way for parents to protect assets for children and designate appropriate stewards (Trustees) to manage the money until the children have matured.

3. Do you have a Durable Power of Attorney? A Durable Power of Attorney is a legal document in which the maker (the principal) designates a person (the attorney-in-fact) who will have the authority to manage the principal’s financial affairs.  It is used to address the possibility of a future incapacity.  Since anyone could experience a period of incapacity regardless of age, every adult, whether age 18 or 88, should have a Durable Power of Attorney.  Without a Durable Power of Attorney in place, your family will be forced to pursue a conservatorship through the probate court if you are in an accident or suffer a medical event that renders you unable to pay your bills, manage your investments, file an application for long-term care benefits, sign a tax return, etc.

4. Do you have a Health Care Proxy and have you discussed your wishes for care with your Health Care Agent? As with a Durable Power of Attorney, every adult should have an advanced directive designating the person (the Health Care Agent) who is authorized to make health care decisions in the event of incapacity.  In Massachusetts, that is called a Health Care Proxy.  However, it is not enough to simply sign a Health Care Proxy; you should have a serious discussion with your Health Care Agent regarding your wishes for managing your health care if you are not able to speak for yourself.  Many people think of the Health Care Proxy as the “pull the plug” document.  However, the reality is that there are many types of decisions that need be made for a person who is incapacitated.  These decisions may affect the quality of your final days.  A great resource to help you dive deeper into this discussion is Being Mortal by Atul Gawande, M.D.  Check it out here and start the conversation.

5. When is the last time you reviewed your estate plan with your attorney? As we all know, time rushes by.  This seems especially true as we get older.  It is not unusual for clients to say, “I can’t believe it’s been 10 years since we were here – it seems like it was just a couple of years ago.” Your estate plan is a work in progress and it needs to be reviewed and updated on a regular basis. Life happens; things change.  It may be that issues that were not of concern when the documents were signed are now important.  This could include the need for long-term care planning, tax planning, or creditor protection planning for a child who is getting divorced.  Ask your parents to take a minute to check the date on their estate plan documents to see when they last updated them with their attorney, and then do the same yourself.  If it’s been more than five years, chances are a review is in order.

6. Bonus question: Once you’re done covering the hard stuff, you can wrap up with, ”So how ‘bout those Pats?” 

To all of our readers from all of us at Samuel, Sayward & Baler LLC, warm wishes for a wonderful Thanksgiving!

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. 

November 2015

For many of us, September has that same ‘new beginning’ feeling as January, no doubt a result of all of those years of going back to school this time of year.  Even though it may be many years since we were in school ourselves, or even had children going back to school, that new beginning feeling persists.  Regardless of your age, or the age of your children, take advantage of that new beginning energy to put your affairs in order.  Here are 5 reasons to address your estate plan regardless of your age or stage in life:

• If you are a parent you know that feeling of wanting to protect your children at all costs. If you have school-age children and you don’t have a Will, or if you haven’t reviewed your estate plan for a few years, take the time to do that now.  As a parent, making sure your children are taken care of in the event you are not able to do so is of vital importance.
• If you have children heading off to college, encourage them to sign a Health Care Proxy and HIPAA Authorization that will ensure you are able to obtain information about your child if she gets sick or has an accident while at school. There’s nothing more frustrating to the parent of a college student than being told that Mom and Dad are not entitled to any information about their child who is in a hospital hundreds or thousands of miles away.
• If you are at the stage where your children are out of the nest and finding their way in the world, it may be time to revisit the fiduciary appointments in your documents and consider whether your children are ready to step into those positions. This includes serving as the Personal Representative of your Will (formerly called ‘executor’), or acting as your attorney-in-fact under a Durable Power of Attorney and/or as Trustee of your Trust.  If your out-of-the-nest children are not as financially responsible as you wish they would be, consider incorporating asset protection into your estate plan for assets protection purposes.  A Trust can protect an inheritance from the reach of your child’s creditors such as a divorcing spouse, bankruptcy, credit card debt, a lawsuit, a failing business, or other issues young adults may encounter.
• If you’re retired with adult children who have children of their own, consider the distribution provisions of your plan. If your children are well off in their own right, generation skipping trusts which avoid taxation of an inheritance in your child’s estate may be appropriate.
• If you or your spouse are experiencing age-related health issues and are concerned about protecting assets against having to be spent down on long-term care costs make an appointment to consult with an elder law attorney to learn what options and opportunities are available for paying for care and protecting assets.

While I will miss the slow, lazy feel of summer days, I love the ‘back to school’ energy that September brings.  Put that energy to good use reviewing your estate plan and taking steps to update it if necessary!

September 2015