Most people have conducted some level of estate planning at some point in their lives. Estate planning typically involves a plan for distribution of one’s assets during life and at death. Estate planning for elders is a bit more complicated due to the natural changes that aging brings, and requires consideration of potential changes in mental or physical condition. In addition to a Will, effective planning requires that you appoint someone to act on your behalf if you become incapacitated. This is achieved with a Durable Power of Attorney (for finances) and a Health Care Proxy (for health care). These documents grant your agent the authority to make decisions on your behalf if you are ever unable to speak for yourself. It is important that you execute these important documents while you are competent to ensure that your wishes are upheld. These documents may also help to avoid the necessity for costly guardianship proceedings in the probate court in the future if you become incapacitated. Following is a brief summary of these essential documents.
DURABLE POWER OF ATTORNEY
A Durable Power of Attorney grants your Agent the authority to act on your behalf in financial and related matters. A Power of Attorney is not sufficient for elder law purposes unless it is Durable, which means it remains effective after the principal becomes incapacitated. The Durable Power of Attorney must be comprehensive, enumerating many specific powers. (If you have a Durable Power of Attorney that is only a page or two long, it is probably not sufficient for many common issues elders face.) There are specific clauses that must be included in order to be effective for many common situations that elders face. A qualified Elder Law Attorney will be able to discuss these with you and ensure that your Durable Power of Attorney will be honored by third parties (banks, brokerage companies, the Internal Revenue Service, etc.).
The most common Durable Powers of Attorney grant the Agent the right to act immediately, but they can also be drafted to grant “springing” powers to your Agent. A Durable Power of Attorney with springing powers will grant your Agent authority to act only after one or two physicians certify your inability to act on your own behalf. Unfortunately, third parties are often more cautious in dealing with documents with springing powers, so your Agent may have difficulty acting on your behalf with a springing Durable Power of Attorney.
It is important that you trust your Agent completely, and you should understand that your Agent has a legal duty to act in your best interests. If you are uncomfortable with granting immediate authority, however, there is another option. You may execute a Durable Power of Attorney that grants your Agent immediate powers to act on your behalf, but have your attorney hold the documents in “escrow” until your Agent presents proof of your incapacity. This avoids the heightened scrutiny from banks and other institutions, but affords you the added comfort and security you desire.
HEALTH CARE PROXY
A Health Care Proxy grants your Agent authority to make health care decisions on your behalf, but only after you have been deemed incapable of making or communicating decisions for yourself. It is a springing power by definition. It is important that you discuss your wishes with your Agent so that they may communicate your wishes if you are not able to. Unlike a Durable Power of Attorney, your health care Agent should make decisions that you would make if you were able, rather than decisions that he or she thinks are best. Your Agent can only fulfill this duty, however, if you take the time to inform them of your wishes.
In addition, because your Health Care Proxy is a “springing” document, your document should include a clause granting your Agent immediate authority to act on your behalf under HIPAA (Health Insurance Portability and Accountability Act). HIPAA was enacted to give individuals greater protection over their medical records, but there may be circumstances in which you need your Agent to assist you regarding your medical records before your Health Care Proxy springs into effect.
Although Living Wills are not enforceable in Massachusetts, it is still recommended that you execute one as a written expression of your wishes regarding artificial feeding or respiration, invasive surgery, etc. If there is ever a dispute about your care in the future, the Court can rely on your Living Will as evidence of what you would want. (Remember the recent case of Terry Schiavo … her husband and her parents disagreed as to whether she would want to be artificially sustained. If she had executed a Living Will, the court could have relied on it to determine what she would have wanted.)
LAST WILL & TESTAMENT
Your Will designates who the beneficiaries of your estate will be. If you and your spouse have “Sweetheart” Wills (each of you leaves everything to your beloved spouse …), consider drafting new Wills which could protect your assets if one of you requires nursing home care. There are strategies you can employ that will ensure that your spouse benefits from your estate if you predecease him or her, without leaving your estate vulnerable to the cost of nursing home care. In addition, if you have a disabled child you will want to make specific provisions in your Will to provide for that child without causing a disqualification from any public benefits he or she is entitled to.
So, dust off that old estate plan and give it a fresh look since your situation has probably changed significantly since you last reviewed it. If you have never done any estate planning documents, now is the time. Take greater control of your future -- call us at 781-681-6638 to schedule a Legal Check Up.
Legal Check Up,
lack of capacity,
Durable Power of Attorney,
Health Care Proxy,
Last Will & Testament