Health Care Proxy

In Good Hands: What to Consider When Naming Fiduciaries

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Selecting the people who will act on your behalf when you can no longer do so is one of the most personal and consequential choices you’ll ever make. Whether you are thinking about who to name in your Health Care Proxy, Power of Attorney, Will, or Trust, each decision involves more than simply identifying someone you care about. These roles demand individuals who are capable, trustworthy, and aligned with your values. They will be your voice and steward when you are unable to speak or act for yourself, so careful consideration is essential.

What Makes a Good Fiduciary

At the heart of every fiduciary role is trustworthiness. A fiduciary must act solely in your best interest, without personal gain or bias. This means choosing someone who has demonstrated honesty and reliability in past situations – someone whose word and actions you can count on.

Equally important is organization. Fiduciaries often juggle complicated tasks – handling bank accounts, communicating with lawyers, filing taxes, or making medical decisions. A person who keeps careful records, pays attention to deadlines, and can manage details under pressure is far better suited to these responsibilities than someone who is easily overwhelmed.

Of course, each role necessitates its own consideration when choosing fiduciaries. For example, when choosing who to name in your Health Care Proxy, compassion and composure are essential. A good health care agent will remain calm in a medical crisis, ask the right questions, and make informed decisions with empathy and clarity. The attorney-in-fact named in your Power of Attorney or your Trustee in your Trust, should have good organization skills, attention to detail, and financial literacy. The person doesn’t need to work in the finance field, but they should be comfortable reviewing statements, understanding basic financial principles, and consulting professionals when needed.

Across all these roles, certain qualities rise to the top: organization, honesty, reliability, and good judgment. Yet perhaps the most important trait of all is familiarity with you – the way you think, what you value, and what kind of legacy you want to leave. A fiduciary who knows you deeply is more likely to make choices that reflect your character, even in situations you could not have predicted.

It’s also worth remembering that these appointments are not set in stone. Life changes, and so do relationships. Review your designations every few years, or after major life events, to ensure they still make sense. Discuss your decisions openly with those you appoint so they understand the scope of their responsibilities and the spirit behind them.

Common Mistakes When Choosing Fiduciaries

Despite good intentions, many people make avoidable errors when naming fiduciaries. One of the most frequent mistakes is choosing based on emotion rather than capability. It’s natural to want to appoint a spouse, child, or close friend, but not everyone has the skills or temperament for the role. Affection should be balanced with practical assessment.

Choosing a fiduciary based solely on the birth order of your adult children is another common pitfall. The oldest child may not have the organizational skills, temperament, or availability needed to manage complex financial or legal responsibilities. Age does not necessarily equal capability or good judgment. 

Another misstep is failing to discuss the role in advance. A fiduciary who is unaware of their appointment – or unclear about what’s expected – may decline when the time comes, leaving your plans in limbo. Having an open conversation ensures they understand your wishes and are comfortable accepting the responsibility.

Sometimes people overlook potential conflicts among family members when choosing fiduciaries. Naming one child as power of attorney or executor can lead to resentment or disputes among siblings. In families where tensions already exist, a neutral or professional fiduciary may better preserve relationships and ensure fairness. Similarly, naming co-fiduciaries who don’t get along can cause major problems down the road – so much so that some institutions often do not accept co-fiduciaries.  

Making Thoughtful Choices

Choosing fiduciaries is ultimately an act of trust. You are entrusting someone to stand in your place when you cannot, to act not only with authority but with heart. By selecting individuals who combine integrity with understanding – people who are both capable and who truly know you – you ensure that your health, your finances, and your legacy are carried forward exactly as you intended.

 

Attorney Leah A. Kofos is an 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.

© 2025 Samuel, Sayward & Baler LLC

Talking to Your Parents about Estate Planning

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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.

© 2024 Samuel, Sayward & Baler LLC

 

Five Things Your Child Should Do Before Going Off to College

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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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

 

© 2022 Samuel, Sayward & Baler LLC

Recording of Smart Counsel Series Webinar on College Planning for Young Adults

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This week’s video on Smart Counsel for Lunch is a recording of last week’s Smart Counsel Series Webinar on College Planning for Young Adults. Don’t miss this webinar if you have children that are planning to go to college in the next year or two. Learn how to have everything in place for them when they leave home for the first time. Please watch and if you have any questions or want to learn more please call us at 781 461-1020.

Young adults and the Power of Attorney and Health Care Proxy

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Attorney Abigail Poole discusses young adults and the Power of Attorney and Health Care Proxy for our Smart Counsel for Lunch Series. Did you know that when a child turns 18 that parents loose the right to make financial and healthcare decisions for them? If you have any questions or want to learn more please call us at 781 461-1020.

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

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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.

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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

© 2020 Samuel, Sayward & Baler LLC

 Lessons Learned from an Injury

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In late December, I slipped on some ice and broke my right ankle. I had surgery on the ankle in mid-January, and I am still in the process of recovering and working toward “getting back to normal.”  As they say, “hindsight is 20/20”, and I have thought about what may have made the entire experience easier for both myself and my family members, friends, and work colleagues who have assisted me during this time. Below I share a few things that may help you be more prepared in case you encounter a similar situation.

  • Health Care Proxy – Confirm your primary care physician has a copy of your most recent Health Care Proxy naming individuals to make health care decisions for you when you cannot (your “health care agent”). If you go to an unfamiliar hospital emergency room due to the injury, you cannot get your hands on a copy of your current Health Care Proxy, and you are cognizant, you may wish to request a Health Care Proxy from the nurse and complete it.  While it will revoke your current Health Care Proxy, at least you will have given authority to your agent to make health care decisions if surgery is immediately required, and you will have provided the hospital with your agent’s contact information.
  • Power of Attorney – Confirm your Power of Attorney is up-to-date and appoints the individuals you want to be responsible to pay your bills and make financial decisions on your behalf if you cannot (your “attorney-in-fact”). To assist your attorney-in-fact, create a list of the expenses you pay monthly. Include the company, account information, and when payments are typically due. A list of bank accounts from which bill payments could be made may also be helpful to your attorney-in-fact. Tell your attorney-in-fact and one or more trusted family members and/or friends where in your home this documentation can be found in the event of an emergency.
  • Emergency Contact – If you carry a mobile phone, program in the contact information of an “In Case of Emergency (ICE)” person. Smart phones permit you to enter medical identification information, such as allergies, in addition to an ICE person which can be accessed without your password.
  • Online Ordering – Consider online options to get daily and other necessities.  There are several companies online that will deliver items to you at your home. I have ordered everything from medical supplies to groceries online these last few months and it has been incredibly helpful.
  • Gratitude – Have gratitude for the kindness, compassion, and support you receive from family members, friends, and work colleagues while you navigate through the injury and recovery process.

In the meantime, if you visit the office and hear faint clangs and thumps, please do not be alarmed –  that is probably me navigating the office on my crutches while I work toward getting back on my two feet again!

What does a Snowstorm have to do with Estate Planning?

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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 22nd 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

© 2018 Samuel, Sayward & Baler LLC

Give the Gift of an Estate Plan – Yours!

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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

© 2017 Samuel, Sayward & Baler LLC

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

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