Estate Planning is the process of analyzing what may happen to all of your things when you die and planning and putting documents in place for making sure it happens as you wish. It may include planning to avoid probate, to reduce estate taxes, to take care of disabled adults or children, or any other things particular to your family and situation. We help you in making decisions on how to dispose of your things when you die, who should be in charge of that process, and how you want the process to move forward.
Healthcare Planning is the process of planning and putting documents in place for making sure that your affairs, medical and financial, can be handled if you were unable to handle them for yourself. We work with you to help decide who you want to help you, and under what terms you want them to help you if you need help.
The following are the common tools used in Estate and Healthcare Planning:
Wills
A Will appoints someone, called a Personal Representative (formerly Executor), to manage your estate after you die, and provides for distribution of your property according to your wishes. It is important to have a will, no matter how small your estate, as it prevents misunderstandings and makes the process of distributing your property easier and as you decide, not as state law may dictate. It is also your last chance to speak your mind and make gifts. A trust (called a Testamentary Trust) can also be built into a Will to deal with unforeseen circumstances, such as assets that might be left to a person on public benefits, or to a minor child. If you have a minor child or expect to have children you can appoint a person in your Will as a guardian should anything happen to you. There are many options to consider in making a Will and it is one document everyone should have in place.
Trusts
A trust is a property interest held by one or more persons, called trustee(s), at the request of another, called a donor, trustor, settlor or grantor, to benefit a third person or persons, called a beneficiary or beneficiaries. A trust can do many things-give money to a disabled beneficiary to enhance life without losing public benefits; protect against nursing home costs; give money to a minor or a spendthrift through a trusted agent; avoid probate; or minimize estate taxes. But trusts are complicated and expensive-not for everyone.
Revocable Trusts are the most common type of trusts. A revocable trust can be amended or revoked any time while the person who sets it up is able to do so. Unless a trust says it is not revocable, it can be revoked. Typically these trusts are set up for purposes relating to maintaining privacy, asset protection, for estate tax minimization, for probate avoidance, or for ease of management of assets in the event of incapacity. But they are often misunderstood with people believing they can accomplish more than they can. Many people also do not understand that putting a revocable trust in place to avoid probate is only one piece of the puzzle-it must also be funded with assets which may involve retitling or transferring assets. When considered estate tax planning putting marital deduction trusts in place may also be only part of the solution-estate equalization between spouses to take the maximum benefit of the state estate tax exemption should also be part of the plan.
Irrevocable Trusts are trusts which cannot be amended or revoked without getting a Court involved. Transfers to an irrevocable trust may be gifts to the beneficiaries since the trust cannot be revoked. These trusts are used primarily to plan for reduction of potential estate taxes and for obtaining Medicaid (MassHealth) and other public benefits for disabled persons. It is very important that an irrevocable trust be both created and funded properly in the first place since it cannot be easily changed later, if at all.
Choosing a trustee may be just as important as choosing the type of trust. The trustee is responsible for performing the duties identified in the trust, as well as some duties which may not be explicit in the trust. The trustee has a fiduciary duty to the beneficiaries of the trust and must perform the duties of a trustee with complete loyalty and honesty.
Health Care Proxies
A health care proxy is a document that appoints another person as your health care agent to make health care decisions for you in the event you cannot. It springs into place only when a determination has been made by a medical provider that you are no longer able to make or communicate medical decisions for yourself. Your health care agent is responsible to make medical decisions for you based first on what they think you would have done or wanted, and if they don’t know, then based on what they feel would be in your best interest. For this reason it is very important to tell your health care agent what you want before you become unable to do so. When activated, a Health Care Proxy continues in effect until you become able to make or communicate your medical decisions for yourself again, and then can go dormant again until needed. It is intended to make a guardianship unnecessary, saving your caregivers time, money and aggravation. It can also be limited in scope, or used as a way of expressing your wishes with regard to end of life care.
Powers of Attorney
This document will ensure that your financial affairs continue to be managed by someone you trust even if you become incapacitated (which is why it is called “Durable”). This document allows someone you name, called your attorney-in-fact or agent, to manage your bank accounts, your real estate, sign things on your behalf and in general perform any act with relation to your property that you could have performed if you were able. However, a durable power of attorney must be specific as to those powers you wish to give to your agent. A durable Power of attorney is intended to avoid the need for expensive and time-consuming conservatorship court proceedings. But there should be a provision in a durable power of attorney to nominate person named as agent to act as your guardian should the need arise. The attorney-in-fact’s power to act on your behalf ends at your death. The document can be present, meaning the power is given by you now; or springing, meaning an event, like your incapacity, is needed for the power to “spring” into being. It is very important to retain the original of a durable power of attorney. Often a copy just won’t work.
Living Wills
A living will is the written form of your wishes that your health care agent will use when making health care decisions for you under a Health Care Proxy. It is not a legal document in Massachusetts, but it is very important if you wish to express your wishes on end-of-life care. There are living wills for different religions, or you can write your own based on your particular wishes and beliefs.
Medical Privacy Forms (HIPAA)
The HIPAA (Health Insurance Portability and Accountability Act) Authorization is a release which allows your health care agent or other person you appoint to have access to your medical records. This form is separate from your health care proxy because your health care proxy only becomes effective when you are incapacitated and you may want someone to have access to your medical records before that happens. This release will allow someone to contact your insurance company or doctor’s office on your behalf if you have questions about a bill or a statement, or allow them to discuss your care with your doctor if you are hospitalized.
Burial Directives
Burial directives are a written way to express your wishes about your burial and disposition of your remains upon death. You can state your wish to be buried or cremated. You can also specify where you would like to be buried, or what should be done with your ashes if you choose to be cremated.
We can help you put these important tools in place, make changes to and update tools you may already have in place, or assist you if you are someone who has been named to act for someone else under one or more of these tools. For more information on estate planning tools please contact us.