Wills

Ask SSB

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Q: What is the difference between a Will and a Trust?

A: That is an excellent question and one we get from many people. Both Wills and Trusts are documents used to direct how assets will be distributed when the maker of the Will or Trust dies.  However, a Trust can do so much more than a Will.

A person’s Will controls the distribution of his or her probate assets.  Probate assets are bank accounts, investments, real estate, tangible personal property, and other assets which are owned in a person’s individual name and which do not have a designated beneficiary.  A probate proceeding is therefore required to transfer title from the deceased to his or her heirs.  For example, a bank account in someone’s individual name which does not name a beneficiary will be a probate asset when the owner passes away. A bank account which is held jointly with another person is not a probate asset when the first joint owner dies as ownership of the account passes automatically to the surviving joint owner.  An IRA that names a beneficiary who is alive when the IRA owner dies is also not a probate asset as ownership passes automatically to the beneficiary.

A Trust controls the distribution of assets that are titled in the name of the Trust or which pay into the Trust when the Trust maker dies.  A Trust can be a valuable asset management tool for the trust maker should he experience a period of incapacity during his or her lifetime.  A Trust can be used to avoid probate when the maker of the Trust dies. This is a desirable goal since probate is usually expensive, aggravating, and time-consuming.  A Trust can be used to control the distribution of a beneficiary’s inheritance.  This is important if you have young beneficiaries, a beneficiary with disabilities, beneficiaries who are not responsible with money, or beneficiaries who have creditor issues or other troubles.  Distributing an inheritance to a beneficiary in any of those circumstances often leads to the loss of the inheritance.  A Trust can be used to protect a beneficiary’s inheritance from the beneficiary’s creditors such as a divorcing spouse, lawsuits, or bankruptcy.  A Trust is an excellent vehicle for ensuring that a beneficiary with disabilities does not lose valuable governmental benefits.  Trusts are commonly used for tax planning and to achieve planning goals for blended families.

The bottom line is that while Wills and Trusts both perform similar functions (i.e. distributing a person’s assets when they pass away), a Trust is a more efficient way to accomplish that function and has far more versatility than a Will.

To learn more about Wills and Trusts and what is right for your situation, call Jennifer Poles to make an appointment with one of our experienced estate planning attorneys.

October, 2018

© 2018 Samuel, Sayward & Baler LLC

Show Your Estate Plan a Little R-E-S-P-E-C-T

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Aretha Franklin, the “Queen of Soul” died on August 16, 2018.  It has been reported that she died without a Will or Trust.  Aretha is in good company, as she has joined the surprisingly long list of celebrities who die without a Will, the most recent of which was Prince.

As an estate planning attorney, I can understand why this happens. A celebrity’s life is complex. They have many different types of assets, multiples homes, and many family and friends who they may have been financially supporting over the years.  How do you sort all that out and make final decisions about who gets what? It’s complicated, as are many important things in life.  However, many things that are difficult are worth doing. Here’s why it’s important to speak to an attorney experienced in preparing Wills and Trusts about your creating a Last Will and Testament.

If you die without a Will, you are said to die “intestate.”  The intestate laws of each state provide a so-called “Will” for those who die without one, as those laws specify who receives your assets if you die without a Will.  However, most people do not die intending to rely on the intestate laws for the distribution of their assets, and neither should you.  Here’s why:

  • The intestate laws can be changed by the state legislature at any time. Massachusetts’ intestate laws were changed in 2012.  So, even if you know what your state’s intestate laws say today about where your assets would be distributed if you pass away, those laws (and the way your assets are distributed) could change without your knowledge.  Further, if a family member passes away before you do, the entire intestate distribution scheme can change.  Essentially, leaving the distribution of your estate up to the state intestate law takes the distribution of your estate out of your control.
  • Certainty is good, both for you and for your heirs. A Will allows you to be very specific about how your assets are distributed and to whom, and leaves no question in the mind of your family about whether this is really what you wanted.
  • A Will also allows you to name a Personal Representative who is the person in charge of identifying and taking control of your assets after your death, paying debts and taxes, and distributing your assets according to the terms of your Will. If you die intestate, the Court will also need to appoint a Personal Representative, but it will be whoever applies for the job (i.e. your sibling who you would not trust manage $20 responsibly), and not the person you have designated in your Will.
  • A Will prepared by an experienced estate planning attorney includes administrative provisions that will save your estate time and expense in the estate administration process.
  • For most people, an estate plan that includes a Trust has added benefits, including avoiding a probate court proceeding at death (with the added bonus of steep filing fees and long delays), keeping distribution instructions private, and the ability to hold assets in trust for young beneficiaries or those who may require assistance with the management of an inheritance.

Although you may be following in the steps of some of the rich and famous if you die without a Will, you and your family will not have the privacy, cost-savings and time-savings benefits that a well-drafted estate plan will provide. Show a little respect to your estate plan and your loved ones and speak with an attorney experienced in preparing Wills and Trusts today!

September, 2018

© 2018 Samuel, Sayward & Baler LLC

An Estate Planning Lesson from Roseanne Barr?

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

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

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

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

June, 2018

© 2018 Samuel, Sayward & Baler LLC

Five Ways to Get Yourself in Trouble when Serving as a Fiduciary of a Will or Trust

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A fiduciary is a person who stands in a position of trust to one or more other people typically with respect to the safeguarding or management of assets. For example, the person you name to carry out your wishes in your Will (Personal Representative) or under your Trust (Trustee) is a fiduciary. This is important to know because fiduciaries are held to a higher standard of care under the law and if they fail to live up to this standard they can find themselves in big trouble. When someone agrees to serve as a fiduciary, the primary goal should be to properly carry out the duties of the position. A good secondary goal is not to get sued while doing it.

If a fiduciary is looking for trouble, here are five actions he or she can take to find it (or conversely, five things you shouldn’t do if you want to stay out of trouble when dealing with Estates and Trusts).

1. Co-mingle the estate or trust assets with your personal assets. One of the best ways to incur personal liability for your service as a fiduciary is to deposit the estate or trust funds into your personal account and then treat those funds as your own. Co-mingling estate or trust funds with the fiduciary’s personal funds is absolutely prohibited. The correct way to title an estate or trust account is with the name of fiduciary clearly identified as Personal Representative or Trustee. For example, “Mary Smith, Personal Representative of the Estate of Lola Jones.”

2. Ignore the beneficiaries of a Trust or Estate. In my experience, one of the surest ways for a fiduciary to increase the likelihood that the beneficiaries will file a claim against him for breach of duty is to fail to communicate regularly with the beneficiaries. When that happens, the beneficiaries tend to leap to the conclusion that the fiduciary is doing something bad. It is often a lack of communication that brings disgruntled beneficiaries to my door seeking redress against the Personal Representative or Trustee. Failure to communicate with the beneficiaries is not only a violation under the Massachusetts Uniform Trust Code (MUTC) which specifically requires a Trustee to keep the beneficiaries informed about the administration of the trust and to promptly respond to a beneficiary’s request for information, it is also just not in the fiduciary’s best interest.

3. Disregard the instructions in the Will or Trust. The Personal Representative of an estate and the Trustee of a Trust usually have broad authority to deal with the estate or trust assets. However, they do not have the option to disregard the terms of the Will or Trust, even if they believe they are doing so for a good reason. For example, I have had fiduciary clients who told me that they made a distribution to someone who is not named in the Will because, ‘I know my mother would have wanted that.’ Or who decide they are going to rent out the house even though the Trust directs that is be sold. Big problem.

4. Don’t ask the beneficiaries for their input. As noted in number 3, a fiduciary has broad power to administer the estate or trust. Unless the Will or Trust instrument directs otherwise, this person decides when and at what price to sell real estate, which financial institutions and advisors to work with, how to invest the funds, and if and when to make an early distribution to the beneficiaries. However, just because the fiduciary has the authority to make all of these decisions without the input of the beneficiaries, does not mean that he or she should do so. If a goal of the fiduciary is not to be sued by the beneficiaries, then soliciting the input of the beneficiaries as to big decisions such as the sale of real estate, or at least notifying them promptly when a decision is made (see number 2 above) will go a long way toward achieving that goal. Some fiduciaries may even ask the beneficiaries to ‘sign off’ on a decision such as the listing price of mom’s house in order to avoid a later allegation that the Trustee was not acting in the best interest of the beneficiaries.

5. Keep sloppy (or no) records. If you want to make sure that you are liable to the beneficiaries for breach of your fiduciary duty, don’t keep a record of anything you do. One of the first responsibilities of a Personal Representative or Trustee is to determine the assets of the estate or trust and then notify the beneficiaries as to his or her findings. This is called the Inventory. The Inventory should identify each asset of the estate or trust and its respective value. Failing to timely provide the beneficiaries with an Inventory is a de facto breach of duty. In addition, a fiduciary is required to account to the beneficiaries for all financial transactions. This includes an itemization of the funds received by the estate or trust such as interest, dividends, tax refunds, etc. as well as a detailed record of disbursements such as payment of the decedent’s medical bills, expenses incurred to maintain real estate, attorney’s fees, and the fee paid to the fiduciary.

6. Go it alone. Here is bonus tip for fiduciaries who want to increase the likelihood they will be sued for breach of duty – don’t seek the advice of any professionals. Serving as a fiduciary is an enormous responsibility and carries with it many duties that will be unfamiliar to most people who are named to serve as Personal Representative or Trustee. Expenses such as legal fees, accounting fees, appraisal costs, etc. are paid from the estate, not from the fiduciary’s own monies. If you are in this position, do yourself and the beneficiaries of the estate or trust a favor and engage experienced professionals to represent and advise you.

Most people feel that being named as the Personal Representative or Trustee is a great honor. It means that person had the faith and confidence that you could perform the duties and responsibilities required by the job.

If you have been named as the Personal Representative of a Will or as the Trustee of a Trust contact the Dedham law firm of Samuel, Sayward & Baler LLC and let us guide you through the process so that you avoid the pitfalls that many first-time fiduciaries fall into.

Attorney Suzanne R. Sayward is a partner with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

May, 2018

© 2018 Samuel, Sayward & Baler LLC

Ask SSB

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Q:       My mom passed away a few months ago.  She had a will that leaves everything to me and my sister equally.  That means we don’t have to go through probate, right?

A:        I wish I could get a hold of the person who started this tale: “If you have a will, you do not need to go through probate.”  This is one of the most common misconceptions among our clients.  I am happy to dispel this rumor once and for all!

The concept of ‘going through probate’ actually has nothing at all to do with whether or not you have a will.  A will is simply a document that outlines who you would like to receive your assets when you pass away.  A will states who you would like to serve as your personal representative (formerly known as executor), whether you have specific instructions about the distribution of certain assets and if you have minor children, who you would like to serve as guardian for those children.  If you do not have a will, the Commonwealth of Massachusetts has one for you.  This is called the intestacy statute.  However, you may not agree with what the intestacy statute says—sometimes its terms are surprising.  Having a will overrides the intestacy law and allows you to state clearly what your wishes are once you pass away.  It can also make the probate process run more smoothly as it allows you to make certain elections in the document (such as a waiver of surety on a bond or license to sell real estate) which can often expedite the whole process.

The answer to your question lies not in the having or not having of a will but rather what assets a will controls and what processes you have to go through to gain access to certain assets when a person passes away.  This is where probate comes in.  A will only has control over probate assets—these are assets that are held in the deceased person’s sole name with no joint owners and no named beneficiaries.  Most IRAs, 401Ks, life insurance policies and investment accounts give the owner the ability to name a beneficiary.  This beneficiary designation takes priority over the terms of the will with respect to that particular asset.  Even better, the beneficiary often has immediate access to the asset upon providing a death certificate.  Likewise, assets titled in the name of a trust are non-probate assets which pass according to the terms of the trust and not the decedent’s will.  Therefore, these assets are not subject to the probate process either.

So, the act of going through probate is only required if the deceased person has probate assets (remember—assets with no joint owner, named beneficiary and not held in a trust).  The will is the roadmap that determines how the probate process will play out but having a will, in and of itself, does not avoid probate.  There you go—this myth is BUSTED!

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

Planning for Your Digital Assets

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Digital assets did not exist 25 years ago, but they are now part of our everyday existence.  Things like the contents of our Facebook, Twitter and Instagram accounts, photographs stored online, digital music, YouTube videos, on-line gaming accounts, domain names, and email are all digital assets – a collection of our digital property and electronic communications.  To the extent these accounts contain information that you would like someone to be able to access after your death or incapacity, it is necessary to plan to provide the appropriate authority and instructions for what you want done with these “assets.”  For some types of these assets, planning is crucial to prevent financial loss (i.e. the loss of a domain name used for business purposes), to protect sensitive personal information (on-line dating websites), to avoid identity theft, and to allow access to valuable assets (think bitcoin, an author’s manuscript, or family photographs).

Most of us create digital assets without a thought as to what will happen to those “assets” if we are no longer around or able to access them.  Even if you share your password for your on-line accounts with a trusted person, keep in mind that it is a violation of federal law for anyone other than you to access your accounts (because password sharing is prohibited under most terms of service agreements) unless the person with whom you share your password has the legal authority to access your account.

This is an emerging area of estate planning.  The Uniform Fiduciary Access to Digital Assets Act (UFADAA) is an attempt to create some clarity in this area.  Massachusetts is one of only a handful of states that has not enacted this law, or even introduced it for consideration.  Hopefully our state legislature will not delay much longer.  The law allows fiduciaries to take action to marshall and protect the digital assets of the deceased or incapacitated person on whose behalf they are acting.  As a rule, access is difficult to obtain because on-line providers all have different policies or terms of service agreements with their customers.  The Uniform Act’s purpose is to bring some uniformity to these policies as they relate to fiduciaries, and to extend a fiduciary’s power over assets in a deceased or incapacitated person’s “estate” to include digital assets, giving a fiduciary the legal right to access online accounts.

The Massachusetts Supreme Judicial Court is in the process of deciding the case of Ajemian v. Yahoo!, Inc.  In this case Mr. Ajemian died with a Yahoo email account, and  Yahoo would not allow access to his account to his siblings who were the administrators of his estate.  This case has been bouncing around the court system since 2007 on procedural grounds, including whether the case had to be decided by a California court (where Yahoo is located) or whether the case was properly decided in Massachusetts where Mr. Ajemian was a resident prior to his death.  The Court now seems poised to decide the substantive issue of access to emails, after oral arguments in March of this year.

Here are some tips to manage your digital assets until Massachusetts law and a path to access becomes clearer:

  • If an online entity offers a way for you to give permission or access to your digital assets stored with that company, pay attention and follow the directions. For example, Facebook allows you to designate a Legacy Contact (Settings/General Account Settings/Manage Account) who can manage your account after your die, or you can choose to have your account deleted if you pass away. Google allows you to control what happens to your account through their Inactive Account Manager feature (My Account/Personal Info and Privacy/Control your Content).  Here you can designate when your account will be considered inactive and what will happen to your Google account, and designate one or more people who will have access to whatever portions of your Google account you choose.
  • Update your estate plan documents, specifically your Power of Attorney, Will and Trust, to ensure those documents provide express permission for the fiduciaries named in those documents to access your digital assets, and express direction regarding what should be done with specific digital assets at death. In our office, we include express permission for access in these documents, and provide our clients with a Digital Assets Memorandum that can be used to record instructions about digital assets.

Keep in mind that if you have not used an online entity’s prescribed method of giving someone permission to access your account, and do not have express permission and direction in your estate plan documents, the company’s Terms of Service Agreement will govern. In such a case, you and your digital assets are at the mercy of the online provider, which may not allow access following your death or incapacity.

September 2017

© 2017 Samuel, Sayward & Baler LLC

Five Things a Well-structured Estate Plan Can Do For Your Children

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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:

  1. 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).

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

July 2017

© 2017 Samuel, Sayward & Baler LLC

Five Ways to Make Sure Health Care Wishes are Carried Out

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Maria_144pxEstate 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:

  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.
  1. 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.
  1. 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.
  1. 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.
  1. 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

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

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