Massachusetts Estate Planning and Elder Law

Appointing More Than One Person As Agent in Your Documents

One of the decisions that my clients often find the hardest to make working on their Wills, Powers of Attorney and other estate documents is deciding whom to appoint as the agents in those documents.  The agent (or Executor in a Will) is the person who act on your behalf in the event you are unable. For instance, in a Power of Attorney, the agent will be able to do your banking for you, file tax returns, hire people to take care of you and even sell your house (if appropriate and if allowed by the document.) 

Clients will sometimes want to appoint two children as joint agents so that things are "equal" and they aren't favoring one child over the other.  If this is the case, I often advise them to think about it some more.  Deciding who to appoint as your agent is not about making people feel good, or avoiding hurt feelings - it's about making sure that your wishes will be carried out in a timely manner when there is a crisis.  And being appointed as a person's agent under a Power of Attorney can be a lot of work and involve taking time off of work or away from family matters to tend to things. 

Things to keep in mind when choosing to appoint joint agents or executors are:

• why do you want to appoint joint agents? Are you trying to make things even? Do you not fully trust one of the people and you want to have a checks and balance system in place?
• have you talked to the individuals involved to see if they want to serve jointly with another person?
• do these two people get along?
• do they tend to think along the same lines so that there will not be a delay in making decisions due to disagreements?
• have you considered what might happen if they are unable to reach an agreement and necessary action must be delayed due to the indecision? 

If you want two of your children each be able to assist you with different matters, and be able to split up the work, you could appoint joint agents who each have the power to act separately (meaning only one of them would need to sign a document for it to be effective.)  Again, you want to be sure that they will not be working against each other, but this can alleviate some of the logistics of obtaining two signatures from people who live in different states and have different schedules. 

Part of the work that I do with my clients is helping them sort through issues like these so that their estate documents (and the agents appointed) will serve them well in a crisis. 

Another Reason to Plan Ahead

Sometimes, the first time I meet a client is in the nursing home or hospital following a crisis.  The person's spouse or child or friend has called me to meet with their loved one and draw up the necessary legal documents - a health care proxy, power of attorney, will or trust, maybe a Medicaid Application- while the client is still capable of making decisions and signing documents.   Visits like these are quite common for the elder law attorney, but they are not common for the client.  The client is already in a vulnerable situation, sick or injured, and now there are legal matters to be dealt with because no plan was put into place before. 

I do my best to make my clients feel at ease, shooing the family out of the room so I can speak to my client alone and find out how they feel, what they want, and what they don't want.  Very often the information that the family member gave me over telephone differs from the account of my client, so I want to make sure I get the whole story.  I also assure the client that I am their attorney, not their child's (even if their child is paying my bill) and not "the family's" and I inform the other family members of this as well, so there is no question where my duty and loyalty lie. 

Making decisions about who should serve as your power of attorney, or how to divide your estate should ideally be made after careful thought and not in a moment of crisis.  By making a commitment to yourself that you will meet with an attorney and get your planning done, you are giving yourself this time to carefully think through your choices, and you can rest assured that when a crisis hits, the only people rushing to your bedside are your family and friends - not your lawyer!

Jennifer Sawday of Tredway, Lumsdaine & Doyle, LLP in California, addresses the same issues in her recent post on nursing home visits.

"Do I Need a Health Care Proxy If I am Married?"

Through the magic of technology, I can tell what people are searching for on the Internet when they find my website.  One of my visitors googled "do I need a health care proxy if I am married?"  I'm not quite sure why the person thought they might not need one just because they were married, and the answer is a resounding YES!

A health care proxy is a vital document for everyone over 18.  This document allows you to appoint someone you trust to make health care decisions for you in the event of your incapacity.  For instance - if you are in a car accident and are unconscious for a few hours or days, or you have a stroke and are incapacitated for a longer time. 

You need this document even if you are married.  You can, of course, appoint your spouse as your health care proxy, but you should also appoint an alternate in case you and your spouse are both incapacitated. 

Without a health care proxy, your doctors will turn to your family to make your decisions, probably your spouse first.  But, if your parents and spouse disagree about your care, this can cause real problems (see Terry Shiavo). The best thing to do is execute a health care proxy appointing the person you choose as your health care agent and then talking to that person and your other family members about your wishes. 

You can download a Health Care Proxy form (for Massachusetts) here, or if you are getting ready to visit your attorney to do your other estate planning, she can prepare a health care proxy for you along with your other documents, usually at no extra charge.

Preparing for the Estate Planning Meeting

You've scheduled an appointment with your attorney, and the meeting to talk about your estate plan is next week.  You have the information form she asked you to fill out, but in addition to listing your assets and income and children, there are other things to think about that don't fit so nicely into a box on a form. These are some of the things your attorney will ask you about, and that you (and your spouse or partner) should think and talk about before the meeting.

• How are your assets held? Are the beneficiaries on your life insurance policies and retirement accounts up to date? Have you even assigned beneficiaries? Do you have contingent beneficiaries listed?
  
  
• Do you have any children (or grandchildren) with disabilities? This can include mental or physical disabilities, and drug and alcohol addiction.  Be sure to bring up these issues with your attorney, and she can advise you on the best way to plan.
  
  
• At what age do you want your children to inherit money? Most people aren't ready to handle large amount of money at age 18. Your Will or Trust can be structured to allow payments at different ages.  You can even make it so that the funds can be held back if you child is in a position that would make a distribution inappropriate at that time (if they are gambling, or suffering from an addiction.)
  
• Who do you want to carry out your wishes? You need to think about who you want to choose as your agent under your Durable Power of Attorney, the executor for your Will, , your Health Care Proxy, the guardian for your minor children, and the Trustee for any trusts you might need.  Have you talked to these people yet about your plans?
  
  
• Do you have old Wills or Trusts, or other legal documents? Gather these up and bring them with you. Your attorney will probably want to review them.
  
  
• What are your other concerns?  No matter how trivial (or embarrassing) you think they are, if they might matter when making your plan, ask them.  If you think of questions while preparing for the meeting, write them down so you don't forget to ask your attorney.  And if you think of more questions after you leave, call her.

New Year's Resolutions

People make New Year's Resolutions about a lot of things - getting in shape, stopping smoking, getting organized, drawing up their Will and other planning documents.  And just as your personal trainer can give you information about the best way to get in shape and guide you on your way, your doctor can offer assistance in stopping smoking and your local organizing whiz can help you find the best way to manage your paper - your attorney can help you figure out the best way to form your estate plan.

Don't be afraid to contact your attorney and say "I know I need to have an estate plan, but I don't know what I need and I'm not sure how to distribute things."  That's OK. I have many clients who call up with the same concerns.  The initial meeting with my clients involves gathering a lot of information from them, and asking a lot of questions to help them form in their own mind what they want. Through the questions I ask, they can figure out who the best person is to serve as their agent under a Durable Power of Attorney, who they should appoint as guardian for their young children, or as trustee of their trust.  And through our conversation, we can decide if they just need a will, or if a trust of some sort would work best for them. 

So, give your personal trainer a call and let him know your fitness goals - he can help you get there.  Then, make an appointment with your attorney and let her know what your goals are for your and your family's future - and she can help you get there.

Managing Your Parent's Finances

If you find yourself in the position of having to take over the management of your parent's finances, this recent article by Bankrate is a good place to start.  It lists the 8 steps you should take:

1. Find All of Your Parent's Financial Accounts and Documents
2. Collect and Start Paying Bills
3. Locate Power of Attorney or Living Trust
4. Open Your Parent's Safe Deposit Box
5. If There is No POA or Living Trust, Become Your Parent's Guardian
6. Document Everything You Do On Your Parent's Behalf
7. Consider Hiring a Financial Planning Team
8. Consider Updating Your Parent's Investments

If your parents are still able to manage their own finances, but may need some help down the road, encourage them to have a Durable Power of Attorney or Living Trust drawn up, so that you will be able to assist them when the time comes.

Without a DPOA or a Trust, it may be necessary to pursue a guardianship or conservatorship if your parents become unable to care for themselves and their financial affairs. This is a costly and often emotional process because it involves having your parent declared unable to care for themselves, and involves the Courts. With a DPOA or Trust, your parent gets to choose who they want to appoint as their agent, and the agent can act at any time with the parent's permission, or when the parent becomes unable to act for themselves.

And while you are at it, don't forget to have your own Durable Power of Attorney or Trust drawn up so that your children can assist you when the time comes...

You Really Do Need A Health Care Proxy & Power of Attorney

One of my dearest clients is in the hospital. She took a nasty tumble a few weeks ago and broke her leg. She was in rehab, then a nursing home and seemed to be doing well.  Then she was admitted to the hospital twice within 3 days.  She's still there, sometimes with it, sometimes not, the doctors aren't quite sure what's wrong yet, and her friend and health care proxy needs to know what's going on.  She couldn't find her copy of the health care proxy and the doctors wouldn't speak to her.  I brought her a copy from my files, and she was able to find out what was going on.  She now carries the Health Care Proxy in her purse.

And there are decisions to be made - not life or death ones, yet, but important ones nonetheless. Decisions such as "should we hold the bed at the nursing home at a private pay rate of $350/day, or let it go?"  And there are things to be done, like writing checks to pay bills.  As the Agent appointed under my client's Durable Power of Attorney, her friend is able to make these decisions and get these things done.

People often don't realize that a tumble or other unfortunate event can take place at any time, and that medical situations can change quickly and without warning.  If my client had not executed these documents, we'd be running to the Court House instead of the Hospital, and her money would be being spent on legal fees rather than her health care. 

As my client's friend and I left the hospital yesterday, she turned to me and said "Now I know you really do need a Health Care Proxy and Durable Power of Attorney! If anyone asks me, I'm going to tell them!"

If you need a Health Care Proxy, Power of Attorney of other estate planning documents, please call me at 781-749-2284.

What's In Your Durable Power of Attorney?

I posted a couple of days ago about making sure that your Will, while still valid, is drafted properly for your current situation.  The same holds true for your durable power of attorney. I have seen many clients come in with what was a perfectly acceptable durable power of attorney for certain purposes, but did not contain all of the provisions necessary to provide for the management of their affairs during incapacity. Unfortunately, I have also dealt with families who came to me after their loved one had already become incapacitated, with a durable power of attorney that did not contain the necessary provisions and they had to obtain a guardianship over their parent or spouse in order to manage their affairs. This is a lengthy, expensive, public and emotionally difficult process which removes many of a person's rights that could have been avoided with a properly and comprehensively drafted durable power of attorney. 

Some of the things that you should talk to your attorney about including in your durable power of attorney are authorizations for your attorney in fact to take the follow actions:

1. rent or sell any real estate you own, 
2. make gifts from your assets, including to themselves if appropriate,
3. apply for public assistance for you - Medicare, Medicaid, SSI, etc.
4. file your taxes and receive returns on your behalf,
5. petition the court for estate planning on your behalf, and
6. be nominated as your guardian if it becomes necessary for you to have a guardian.

This is not a comprehensive list of all the powers contained in a durable power of attorney,  but they are some of the ones that can cause problems down the road if they are left out. So, get those documents out of the box in the closet and let your attorney take a look at them. She'll let you know if they are perfect as they are, or if they need to be changed. Either way, you and your family can rest easier once it's done.

Do your kids need their own estate planning documents?

If your children are over 18, did you know that you no longer have access to their medical records, health insurance claims or other confidential information?  The only way for you to have access to these important documents is if your children sign the appropriate releases allowing you access: health care proxies, HIPAA releases, even Durable Powers of Attorney.

Now, maybe your children want their privacy and no longer want you to have access to these records. However, they should still be encouraged to appoint someone to be able to act for them if they become incapacitated or in the event of an emergency. Maybe they will want to appoint an older sibling, or close friend, or maybe they will want to appoint one parent and not the other.  Whatever they decide to do, remember that it is their decision and you should respect it.  When you are talking to them about this, try to frame the discussion so that they realize you aren't trying to violate their privacy, but rather you are trying to ensure they have some plan in place so that if an emergency arises, someone knows what their wishes are and has the legal authority to make decisions in accordance with those wishes.

Better yet, see if they'd like to make an appointment with an attorney to discuss these matters in confidence and learn the importance of planning for everyone over the age of 18.  If you or your children would like to speak with me about putting a plan into place, you can reach me at 781-749-2284.

Estate Planning for the Single Person

Do you think estate planning is just for couples and families? Do you think  you don't need a Will or a Power of Attorney because you aren't married and don't have children? Think again.

Having the proper documents in place is almost more essential for a single person than a married one. Consider this: is anyone else listed on your bank accounts with you? What about your house or condo that you own? Does your family know and respect your wishes regarding health care and end of life decisions?

Durable Power of Attorney

If something happened to you and your family or close friends needed access to your accounts to manage your affairs, they would have to go to court to obtain a guardianship over you - a timely, expensive and public process.  By executing a durable power of attorney, however, you are able to choose the person you want to handle things for you, and they can immediately begin to act on your behalf if you become incapacitated, without needing the Court's permission.

Health Care Proxy

Have you talked to your family about your wishes regarding health care decisions and end of life care? Maybe you have talked about this with a close friend or significant other and would feel more comfortable having them make those decisions for you if you are unable.  Unless you've signed a health care proxy appointing the person of your choice, they won't be able to make those decisions for you in the event of an emergency. The doctors may look to your family for input, but if you aren't close to your family or if your family is not in agreement with your wishes, it could lead to conflict and or result in decisions that you would not have made for yourself.  Take the time to decide who you want to appoint, and sign a health care proxy naming that person.

Will

Even if you are unmarried, and don't have children, you probably still need a Will. There is a saying: "If you don't have an estate plan, the State has one for you."  If you own real estate, or have investments or savings, and you don't have a will to specify how you want them to be distributed upon your death - they will be distributed according to the intestacy statute in Massachusetts.  This means they will be distributed to your next of kin: your parents, or if they are no longer living, then to your siblings, and on down the line. But what if you want things to be distributed differently? For instance, you have a disabled sibling and receiving an inheritance might disqualify them for certain essential services they have been receiving, or you have a favorite niece and you'd like your property to be put into a trust for her benefit. By making a Will, you get to decide to whom and how your property is distributed. After all, it's your stuff and you worked hard to earn it, shouldn't you be the one to decide where it goes?

 

The Basic Five

While the terms of each of these documents will vary depending on your particular situation, these are the five basic estate plan documents that everyone needs. 

Durable Power of Attorney
This is perhaps the most important document, even more so than a Will, because this is the document that will ensure you affairs continue to be managed, by someone you trust, even if you become incapacitated. This document allows someone you name, called your attorney-in-fact, to manage your bank accounts, your real estate, sign things on your behalf and in general perform any act with relation to your property (as opposed to your person) that you could have performed if you were able.

A durable power of attorney will often make a guardianship or conservatorship unnecessary, but there can be a provision in the durable power of attorney to nominate the attorney-in-fact to act as your guardian should the need arise. The attorney-in-fact's power to act on your behalf ends at your death. 

Will
A Will appoints an executor to manage your estate after your death, and distributes your property according to your wishes. A Will can also...

Beyond Birth Order - Choosing Your Attorney-in-Fact

An attorney-in-fact is the person you select to act for you under your durable power of attorney in the event of your incapacity. Under the power of attorney, that person will be your legal agent, and able to manage your money, real property and other matters such as life insurance and retirement accounts.  They will essentially be able to perform any act related to your property that you could have performed.
I have seen many clients who appoint their spouse as their primary attorney in fact, with their children, from oldest to youngest listed as the alternates. Your spouse is probably a good first choice, since they  are most likely on many of your accounts and know how you would like things handled. But, when appointing your children, there are more important things to consider besides birth order: