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.
Health Care Proxy
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.
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.
© 2020 Samuel, Sayward & Baler LLC
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!
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!
© 2018 Samuel, Sayward & Baler LLC
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.
© 2017 Samuel, Sayward & Baler LLC
Q: How do I choose who to name as my executor, power of attorney, and health care agent? I don’t want to hurt any of my children’s feelings.
A: It can be hard to decide who to name to these roles, especially if you think a child will be upset if not chosen. While you don’t want to make a child feel slighted, the duties and obligations of your executor (now called a Personal Representative), Attorney-in-Fact under your durable Power of Attorney, and your Health Care Agent are substantial and you must appoint a person who can carry out these responsibilities. The role of Personal Representative and Attorney-in-Fact require a person who is well-organized, not a procrastinator, and willing and able to move a project forward to a conclusion. He or she should be able to work well with others, such as attorneys and accountants, and also get along well with family members and keep them informed.
Your Health Care Agent should be someone you are comfortable speaking with about your health care wishes and who you can trust to carry out your instructions. Your health care agent should be able to communicate with your health care providers, not be afraid to ask questions or request explanations, and be able to advocate for you if necessary.
In complex situations or where significant discord between family members is expected, a non-family member may be the best choice. In any event, you should discuss your concerns with an experienced estate planning attorney who will help you make the right choices.
© 2017 Samuel, Sayward & Baler LLC
As you spend time with your children and grandchildren during the lazy days of summer, it is a good time to think about your estate plan, and whether it is structured in a way that takes care of your family. Here are a few ways a good estate plan can protect and provide for your children:
- Protect the inheritance you leave your children. If you pass away before your children are mature or experienced enough to responsibly manage the assets they inherit from you, those assets may very well be lost to your children’s creditors or poor judgment. Some risks to a child’s inheritance include substance abuse, persistent friends in need of money, failed marriages, bankruptcy, irresponsible spending and lawsuits. A Trust can hold your child’s inheritance and name a Trustee to manage and protect those funds for your child. The Trustee can use the Trust assets for your child’s benefit for reasons the Trustee determines are appropriate, or for reasons you specify in the Trust. These could include making sure your child can pay tuition, pay for a wedding, buy a home, or start a business. The Trustee can manage the assets for your child’s lifetime or for a specific period of time (for example, until age 35).
- Protect a disabled child’s benefits. If you have a child that receives needs-based government benefits because of a disability, or may need those benefits in the future, your estate plan should include a trust for the benefit of your child. A supplemental needs trust that receives and manages the assets your child inherits will allow those assets to be used for the benefit of the child throughout the child’s lifetime, but will not disqualify the child from receiving any needs-based benefits the child may now or in the future be eligible to receive. A Trust can also be used to hold the child’s own assets in order to protect those assets and facilitate eligibility for benefits. If you have other family members who want to leave assets for the benefit of a disabled child, make sure they understand that proper planning is important to ensure that inherited assets will not affect the child’s eligibility for benefits.
- Ensure future vacations at the family vacation home. For children young and old, the family vacation home is a special place that parents often want to pass on to future generations. Careful planning can ensure that long-term care costs and estate taxes do not get in the way of your family being able to keep the vacation home and continue to enjoy it. Considerations about managing and paying for a vacation property are also important issues to address when planning for such a property. A Limited Liability Company, trust, or co-ownership agreement can create a structure for dealing with issues such as use of the property, shared expenses, maintenance and repairs, and rentals. A well-structured plan will also make provisions for the death or disability of an owner, and the buy-out of an owner’s share if they pass away, become disabled, or just want out.
- Ensure that your minor children are properly cared for in the event of your death. If you’re lucky this summer, you may be able to get away for a weekend with your spouse and leave your young children at home with your parents or friends. Most parents prepare for a weekend away by leaving instructions behind about caring for the children while they’re away. Think of an estate plan as a set of instructions for how your children should be cared for if you are not there. Although it is difficult to contemplate the possibility that you may pass away leaving young children, planning for that possibility will ensure that your children are in a far better position than if you did no planning. Planning ahead means that you are the one who chooses the people that will take care of your children, not the Court. Creating an estate plan means you can make your house available for your children and their guardian to live in, so your kids can stay in the family home, continue to go to school with their friends, and graduate from high school in the town they grew up in.
- Help your children with health care decisions. Children who are age 18 or older are adults in the eyes of the law. This means that they make their own health care decisions. If your college-age student is ill, her doctor cannot share medical information with you without your child’s permission. If your child’s condition means that she is not able to grant that permission, you may find yourself unable to obtain information or make decisions about your child. A health care proxy is a document by which your child can name you to make health care decisions for her if she is unable to make those decisions herself. Your child can sign a HIPAA Authorization to give permission for physicians and other medical professionals to speak with you and release information. These are simple documents that can make access to information and decision-making possible in the event of a child’s unexpected illness.
The peace of mind that comes with good planning will help you enjoy your summer vacation. If you haven’t gone through the estate planning process, the summer is a good time to consider how you would want your plan to provide for your family, and take the first step in putting that plan in place. Time flies and summer will be over before you know it, so don’t wait!
Maria Baler, Esq. is an estate planning 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). 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.
© 2017 Samuel, Sayward & Baler LLC
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 10th anniversary of National Healthcare Decisions Day. Here are five ways you can ensure your care preferences are clearly documented and honored:
- 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.
- 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.
- 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.
- 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.
- 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.
© 2017 Samuel, Sayward & Baler LLC
© 2017 Samuel, Sayward & Baler LLC