Estate Planning Bits

Massachusetts medical orders for life-sustaining treatment

Medical Orders for Life-Sustaining Treatment (MOLST) is a standardized, voluntary form that allows a seriously ill patient to provide preferences for certain medically appropriate life-sustaining treatments into valid medical orders that may be honored by all health care professionals. The form contains valid medical orders concerning:

• CPR
• Intubation/ventilation
• Transfer o a hospital
• Dialysis;
• Artificial Nutrition
• Artificial Hydration and
• Other treatment preferences. 

MOLST is based upon the ethical and legal principles of patient self-determination and respect for patient autonomy. Its instructions are effective immediately and reflect the patient’s current health status and preferences. MOLST is suitable for patients of any age with a serious medical condition including, but not limited to: life threatening disease, chronic progressive disease, dementia, life threatening injury, or medical frailty.

A valid MOLST must be signed by both the patient (or the patient’s health care proxy – but only if the patient has lost capacity, or the patient’s guardian) and the attending physician, nurse practitioner, or physician assistant.

A Health Care Proxy and MOLST are two different forms used in Massachusetts to express a person’s wishes about their own medical care. These forms are used for different reasons and at different times in health care planning. Although MOLST is not intended to be drafted by elder law attorneys, attorneys should ensure that there are no inconsistencies between a Health Care Proxy and the MOLST.

 

Todd C. Ratner, Esq.

Photo credit: Microsoft  

 

Why your college-age child needs his or her estate planning documents in place

If you have children who are over the age of 18, you should know that they need to have documents that are similar to your own. If your child gets ill while at school, without the proper documentation, you may not have access to talk to medical personnel.

When your child turns 18, they are no longer considered a minor, and you, (formerly their natural guardian,) no longer have the authority to make decisions for them. As a result, if you have to contact medical personnel at their college, it is likely that you will be told “We’re very sorry, but we cannot discuss any issues relative to your child, as we do not have authorization to do so.”

A child who is 18+ has the same rights as any other person, and privacy protection by the HIPAA (Health Insurance Portability and Accountability Act) prevents medical personnel from discussing medical decisions with anyone, including a parent, except in potentially dire need situations.

To prevent this potential problem, it is easy for your child to sign a health proxy, which allows someone, presumably you, to have access to your child’s medical records. This document should be given to the clinic or similar facility at their college when they arrive.

To bring home this point, there have been plenty of examples in recent years of situations at colleges involving violence. Again, your child’s college may not be able to share information without a health proxy, so you should keep a copy at home that could be faxed or email to the school if necessary and in the event that the school misplaces their original.

In addition, it may be beneficial to have a power of attorney in place so you have the authority to make financial decisions on behalf of your child if necessary.

Although this may be a difficult discussion, it could prevent a lot of emotional distress and anguish and is a relatively straight forward and easy document for your child to have. They may also even wish to include language within the document that allows organ donations if desired. Your child may also want to provide advice for end of life decisions, which would prevent protracted litigation over who will make these difficult decisions if and when your child is in a situation that requires them.

 

Hyman G. Darling, Esq.

Photo credit: Microsoft 

 

Estate Planning for Blended Families: Considerations for cohabitating or married couples with kids from other relationships

The modern family of today is often a mix of spouses, exes, kids, and steps who somehow find a way to make it all work. Estate planning for such an intricate blended family may be a little tricky, and there are lots of factors to consider. 

While traditional estate planning documents are critical, it is also important to consider a prenuptial or a cohabitation agreement. Either one of these agreements should spell out, in as much detail as possible, what will occur if the relationship dissolves, regardless of whether or not the couple is married. 

One of the major issues that this agreement should address is housing. When a couple purchases or rents a home together, if the relationship falls apart, and both parties are liable on a mortgage, what will happen?

Additional life insurance may be necessary if one of the parties is under an order of the court from a prior divorce decree wherein a percentage of assets is required to be maintained for the benefit of children from the prior marriage.

It is also important to consider each party’s health proxy and durable power of attorney. Who will be in charge of making decisions in the unfortunate event that one individual becomes incapacitated?

A will and possibly a trust should also be considered, and provisions within these documents should fairly closely mirror the prenuptial agreement to conform with all of the requirements set forth in that agreement, which may be construed to be a legal contract.

In addition, if there are any requirements under an order of the court from a prior divorce decree, those provisions should also be reviewed and included within one’s will.

When assets of relatively equal value are owned, some couples choose to retain their own assets in the event of a divorce, however, in the event of a death, some additional assets would be left to the survivor. Other options may include a possible phasing in of assets.

Health insurance should also be considered prior to marriage. Both parties may be receiving health insurance from a former spouse. The previous divorce decree, any modifications, and separation agreement should be reviewed carefully ensure that all benefits are maintained or solutions may be implemented.

The issue of life insurance and qualified plans such as 401(k)s, IRAs, 403(b)s, etc. should also be reviewed. It is very important to understand that such assets pass by beneficiary, not by will. Therefore, whoever is named as the beneficiary of these assets will receive them without the need of having those assets pass through probate.

Likewise, if assets are intended to pass to a trust or to individuals listed in a will, it is important to obtain change of beneficiary forms and have them signed and forwarded to the plan administrators at insurance companies when the documents are signed.

The bottom line is that there are many important considerations and decisions to make before remarrying or moving in with another person.

 

Hyman G. Darling, Esq.

Photo credit: Microsoft 

Preparing for your vacation

Vacation season is coming soon after the holidays. Are you planning a trip?

When planning to travel, it is common to experience nervousness. What would happen if you did not make it safely to or from your destination? Fortunately, you can establish an estate plan before your trip and quiet those fears. 

A simple plan includes a health care proxy, durable power of attorney, last will and testament, and possibly a homestead declaration. 

Should you experience an illness or injury while traveling that leaves you unable to handle your medical or financial decisions, having a health care proxy and durable power of attorney in place will make a world of difference. A health care proxy is a document in which you designate someone to make health care decisions for you if you are incapacitated. Similarly, a durable power of attorney is a document in which you designate someone to make your financial decisions. Having these documents in place allows the trusted person you have named to start handling your affairs as soon as you need assistance. 

God forbid you should pass away while traveling. Your family and loved ones would surely be shocked and distraught. But in the event that tragedy occurs, a last will and testament can provide some order during that otherwise difficult time. Your will sets forth the distribution of your probate estate, which are the assets that you leave in your name alone with no named beneficiary. In your will, you will also designate an executor, who is the person who will be responsible for carrying out your plan. Should you have minor children, you will also name a guardian, and possibly a trustee, who will be responsible for taking care of your children in your absence. This planning takes a tremendous burden off of your family members. 

For homeowners, a homestead declaration is a necessity. This is a one-page form that, once recorded in the Registry of Deeds, affirms that your principal residence is your homestead. It will protect the equity in your home up to $500,000 from judgments that arise after the declaration was recorded. Should you happen to cause an accident while traveling, the declaration will ensure that even if you are sued and your insurance is not sufficient, up to $500,000 of the equity in your home will be protected.

Gina M. Barry, Esq.

Photo credit: Microsoft   

Navigating the Minefield of Long Distance Caregiving

There comes a point when most of our nation’s elders will need assistance with various tasks, such as household management, bathing, dressing, medication management, meal preparation and eating, transferring, and/or using the restroom. In the past, such assistance was typically provided by family members, however, with the increased mobility of our society, it is now common for family members to be too physically distant to provide hands-on care

It is also common for an elder to be unwilling to move closer to their family, even if staying where they are means receiving care from someone other than their family members. Although the distance creates many hazards, steps can be taken to allow successful navigation of the minefield of legal, financial, and administrative issues that lie in wait for the long distance caregiver.

The most common legal issue associated with providing proper care and oversight from a distance involves establishing proper legal authority to ensure ongoing care in the event of incapacity of the elder. This legal issue can be easily resolved through the elder’s execution of a durable power of attorney and health care proxy. These documents give someone the elder chooses the authority to make financial and medical decisions on their behalf if they are incapacitated.

In addition, end of life decisions should be discussed with the elder, and their wishes should be memorialized in writing within the proper legal document. Ideally, the estate plan will also include a will, which provides clear instructions as to the disposition of the elder’s estate upon their passing away.

This is just the tip of the iceberg. If you are caring for your aging parent from afar, call us, and we’ll help you set up the proper documents for their care.

 

Gina M. Barry, Esq. 

Photo credit: Microsoft   

Health Care Proxy vs DNR Order – What’s the difference?

Paramedics are often called to a home because of an emergency situation, and most people desire that extraordinary medical procedures be utilized in a time of crises. But this is not the case in every situation.

While an individual is competent, he or she may exercise their opinion to have treatment provided to them or discontinued, so that no further attempt should be made to provide them with life support and related medical treatment. While competent, it is relatively straight forward and easy for someone to make decisions regarding their own health care. When competency falls into somewhat of a gray area, the test for competency helps to determine whether the patient understands the nature of their illness and the effects that proposed treatment or lack thereof would have on them.

In Massachusetts a Health Care Proxy designates another person to substitute for the patient in making decisions regarding end of life and ongoing healthcare treatment.

However, the standard form provided by medical facilities does not provide for a so-called Do Not Resuscitate Order (DNR.) Many individually prepared documents do include language that permits the agent under the Health Proxy to make decisions for the patient relative to all medical decisions, including end of life and possibly a DNR.  

In the absence of a Health Care Proxy, a guardian will have to be appointed by the Probate Court in order to not only determine ongoing care for the patient, but also for extraordinary treatment or the withdrawal of that treatment.

This process will likely be even more drawn out as a result of the enactment of the Uniform Probate Code of 2009, which protects an incapacitated person’s rights by instituting various protections or hurdles that must be overcome before a decision is made regarding incapacitated person’s health care, especially end of life decisions.

All of these issues may be more compounded when there is a contest regarding who should serve as the Guardian and whether or not the person’s end of life decisions are being carried out in a manner that is appropriate for them and as they may have desired.

A DNR Order becomes a separate and distinct issue relative to the decision making process, as it normally is executed by a person and is also signed off as accepted by that individual’s physician.

Normally, when paramedics are called to a home, they must take all action necessary to preserve the life of the patient, but they are protected from potential liability by a DNR Order, which allows them to withhold life sustaining measures.

Hyman G. Darling, Esq.

Photo credit: Microsoft   

Vacation? Establish an estate plan before your trip

Vacation season is upon us, and it seems that everyone is planning to get away. Are you planning a trip? Is your estate plan up to date? 

Many people contact their lawyer within days of taking their trip. This is not ideal, as you should not rush the completion of your estate plan. If at all possible, you should contact your attorney at least one month in advance of leaving. Should you find it necessary to establish a plan quickly, establish a simple plan and commit to refining it upon your return. This includes a health care proxy, durable power of attorney, last will and testament, and possibly a homestead declaration. 

Should you experience an illness or injury while traveling that leaves you unable to handle your medical or financial decisions, having a health care proxy and durable power of attorney in place will make a world of difference. 

A health care proxy is a document in which you designate someone to make health care decisions for you if you are incapacitated. Similarly, a durable power of attorney is a document in which you designate someone to make your financial decisions. Having these documents in place allows the trusted person you have named to start handling your affairs as soon as you need assistance. 

God forbid you should pass away while traveling. Your family and loved ones would surely be shocked and distraught. But in the event that tragedy occurs, a last will and testament can provide some order during that otherwise difficult time. Your will sets forth the distribution of your probate estate, which are the assets that you leave in your name alone with no named beneficiary. In your will, you will also designate an executor, who is the person who will be responsible for carrying out your plan.Should you have minor children, you will also name a guardian, and possibly a trustee, who will be responsible for taking care of your children in your absence. This planning takes a tremendous burden off of your family members. 

For homeowners, a homestead declaration is a necessity. The homestead declaration is a one-page form that, once recorded in the Registry of Deeds, affirms that your principal residence is your homestead. The homestead declaration will protect the equity in your home up to $500,000 from judgments that arise after the declaration was recorded. Should you happen to cause an accident while traveling, the declaration will ensure that even if you are sued and your insurance is not sufficient, up to $500,000 of the equity in your home will be protected.

 

Gina M. Barry, Esq.

Photo credit: Microsoft   

 

DNR/Do Not Resuscitate: how is it different than a health proxy?

Why do I need a DNR? Don't I already have this covered in my health care proxy? Find out in this video from Hyman G. Darling, Esq., 413.781.0560, HDarling@BaconWilson.com

  

This video has been prepared by Bacon Wilson, P.C. for informational purposes only and is not intended and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

What is the Uniform Anatomical Gift Act?

Massachusetts has adopted the Uniform Anatomical Gift Act, which authorizes you to make an anatomical gift of all or any part of your body. Anatomical gifts become effective upon your death and are made to a specified or unspecified donee.

The gift may designated on your driver’s license, in your will, by a recorded oral declaration, or via another document, so long as you are of sound mind and at least eighteen years old. An anatomical gift made within your will is effective upon your death, regardless of whether or not your will is probated, and it will remain valid even if the will is deemed invalid.

Many organizations that accept anatomical gifts provide forms that specifically list themselves as the donee/recipient of the anatomical gift. In the event that you do not designate your intent to make a valid anatomical gift during your lifetime or through your will, other individuals may also make such a gift on your behalf when you die.

Massachusetts laws list the individuals authorized to make an anatomical gift on your behalf in the following order of priority: your (1) spouse, (2) adult children, (3) parents, (4) adult siblings, (5) health care proxy, (6) guardian, or (7) any other person so authorized.

You may also refuse to make an anatomical gift. One way of executing your refusal is by signing a record, which is witnessed by at least two adults. You may also execute a refusal by stating it within your will, regardless of whether it is probated or invalidated. Additionally, any form of communication made during terminal illness or injury to at least 2 adults, one of whom must be disinterested, will also satisfy to render a refusal valid.

Donors or other individuals authorized to make anatomical gifts may also amend or entirely revoke a previously completed anatomical gift. There are several means of doing so, which include the following: signing a record witnessed by two adults, at least one of whom is disinterested, executing a later gift that amends or revokes the previous document either expressly or by inconsistence, or in the instance that the anatomical gift was made in a will, the gift may be amended or revoked in the same manner used to revoke or amend a will. Donors may also revoke their refusal of a gift by destroying or cancelling the record or any portion thereof.

 

Hyman G. Darling, Esq.

Photo credit: Microsoft   

 

Estate planning for same-sex and unmarried couples and singles

There are many unique legal issues to consider relative to the estate planning process for same sex couples, couples who have not decided to get married, and single people. Although many of the planning techniques are similar, since there is no “legal” relationship, special documents must be prepared in many cases.

Naturally, it is important that a Will be given the due consideration in the planning process, but often other required documents are not given as much attention, and they may actually be more important. This “lifetime planning” is relative to your Health Proxy and Power of Attorney, which may allow another person to make decisions for youl upon your incapacity.

Power of Attorney:

Your Power of Attorney is a very important document, since it controls decisions over your finances upon incapacity. Care should be taken to be sure that when a person is named, that individual has business sense, is trustworthy, and also has the time to manage and direct your investments if you cannot do so for yourself. If this document is not prepared, then a conservator will have to be appointed by the Probate Court, and this process often times becomes time consuming, expensive, and emotionally draining.

In this document, a partner or close friend may be named instead of a direct family member. A family member may be displeased with your choice, but once the document is signed, your backup agent is in charge of all financial affairs in the unfortunate event of your incapacity, regardless of your family members’ wishes. Keep in mind though that death revokes the Power of Attorney, and therefore, this document is not used for post-death decisions.

Health Proxy:        

Your Health Proxy is also an important consideration. This person may be someone different than the one serving as Power of Attorney, but it should be someone who is close to you and will who carry out your wishes. Within this document, there should also be a backup person named in the event that the primary decision-maker is unable to make decisions due to their own illnesses.

Once again, a family member may be somewhat aggrieved that they are not making these decisions, but it can be written such that the decision maker should consult with a family member, but need not heed their advice when making decisions. Within this document, there should also be language regarding funeral and final disposition arrangements, so that there will be no question as to who is in charge and what will happen. In addition, whether or not you wish to be an organ donor should be included in this document as well as on your license.

Will/Trust:   

Needless to say, your Will is also an important document, and you should pay particular attention to who is in charge of your estate as your personal representative. This person will be in charge of making all distributions and decisions, attending to tax matters, and possibly closing your business if your own one. If this person is not able to serve, consider who the backup will be, and if there is no appropriate person, perhaps a bank or trust company can serve in this role.

Within your Will, there may also be a memorandum regarding how specific items of tangible property shall be distributed and to whom. Often, these items are more sentimental than material in value, but they could cause a significant dispute. The objective is to prevent dispute with this document.

If a Trust is to be used, often the named personal representative is also serving as the trustee, with specific instructions as to how your assets should be divided. Again, within this document, it is sometimes anticipated that a family member may not be pleased with the ultimate disposition of your assets, and therefore a specific clause may be included within the document that specifies who your family are and who shall not be a beneficiary under your Trust/Will.

In order to further protect your named beneficiaries, it is often advisable to have a so-called “no contest” clause in the document. This means that if an individual is not satisfied with the amount they are receiving, and if they were to challenge the Will on any grounds, and even if they are successful, they will lose a part of their inheritance, and thus relinquish what otherwise would have passed to them. This clause puts the possible objector in a precarious situation, since they would be forfeiting their distribution in order to attempt to gain more. They must give significant thought regarding whether they wish to challenge the document and forfeit the amount that was left to them prior to moving forward with that case.

Although there are many other considerations, it is important that an unmarried person or members of a same sex couple pay attention to the way assets are held and how they are to be distributed before making a decision to finalize their estate planning documents.

 

Hyman G. Darling, Esq.

 

Photo credit: Microsoft