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As an individual approaches the end of life, many legal issues may arise, including medical decisions, financial and estate planning decisions, and care for dependents. Planning in advance for these issues will give you greater assurance that your wishes regarding these decisions will be carried out.
Legal Options for Decision-Making on Behalf of a Living Person
There is always the possibility that you will reach a point where you cannot make or communicate decisions for yourself. When this happens, a bank, hospital, or other service provider may need to know who is authorized to act for you. If they choose the wrong person, they may be held liable for a wrong decision. There are tools to help you plan for who will make these decisions and laws that provide ways to address unplanned situations.
A healthcare proxy is a document allowing you to designate another person (an 'agent') authorized to make health care decisions for you in the event that you are unable to make or to communicate healthcare decisions. This is described in more detail in Advance Care Planning. This document must be put into place before you are unable to make or communicate health care decisions for yourself.
Durable Power of Attorney
A durable power of attorney is a document providing for the legal appointment of another person (an 'agent' or 'attorney-in-fact') as your legal representative to make non-medical decisions for you. It is 'durable' because it does not end if the person giving the authority becomes incapacitated. The appointment of the agent can be structured so that it doesn't go into effect until you actually become incapacitated. This document also must be put into place before you are unable to make or communicate financial care decisions for yourself.
Guardianship and Conservatorship
If you don't undertake advance planning, a court may appoint an agent to make decisions on your behalf. A guardian is a court-appointed agent responsible for making medical and financial decisions. A conservator is a court-appointed agent responsible for only financial decisions. Usually, a court will only appoint a guardian or conservator after you are unable to make or communicate your own wishes and have failed to put into place or have revoked a healthcare proxy or durable power of attorney. Your family and friends may, or may not, have a say in whom the court appoints as a guardian or conservator. You can nominate someone to act as guardian or conservator for you if the need arises in a durable power of attorney document.
If you have mental health issues, and are taking or need antipsychotic medication or treatment, a Massachusetts case called Rogers provides for additional protection for you. Under a Rogers guardianship, the court appoints an attorney to represent you and approves a specialized treatment plan that must be followed. A properly drafted healthcare proxy or durable power of attorney may allow those caring for you to avoid this process.
Toward the end of life, planning sometimes needs to be done to deal with financial issues that may arise for you if expensive and potentially long-term medical care is needed or for disabled or dependent persons you may have been caring for. Financial planning can help you put your finances in order and maximize your resources both for your care and for your dependent's care.
Good advice is critical. Some financial advisors may sell products based on the commission they will receive rather than on what may be in your best interest. If you are considering the use of a financial planner, find one who is objective and understands the specific issues that you are confronting. For instance, while some types of annuities will protect your assets from long-term care costs, others do not. Some assets are appropriate for investment in a long-term trust for minors, while some are not. Find a financial planner who understands the differences.
Just as important as lifetime planning at end of life is planning for death. Most people who die own something that needs to be passed on to others. It could be money, personal items, or even a last statement or sentiment. "Estate planning" in its most basic sense is setting in place documents that define how you want to dispose of these items.
In Massachusetts, there are laws that define how to deal with the property of a person who dies, known as the 'estate.' The process of administering this property, called probate, is done through a special set of courts called the probate courts. The probate process involves appointing someone to administer the estate, who then collects the property, pays debts and expenses, and distributes the property to those you leave behind.
It is important to realize that all property you have at death either passes through the probate process (called probate property) or goes outside of the process (non-probate property). This distinction can be very important, and mistaking one for the other can have dire consequences. Non-probate property, such as life insurance or qualified retirement plans, where there is a person or charity named as beneficiary, does not generally need to be administered. When you die the beneficiary simply proves your death and receives the benefits. For probate property, the holder of that property, for instance, a bank or stock company, needs to know whom to turn the property over to. They rely on the probate process to authorize someone to act for the estate and see to the disposition of the property in accordance with your wishes.
If you don't plan in advance, the Commonwealth has provided a set of laws that describes who gets appointed to administer your estate and how they dispose of the property. Unfortunately, these laws do not typically provide for the same disposition as you would. For instance, if you die with a spouse and children, the spouse is entitled to only a portion of your estate and the children, regardless of age, receive the rest.
To avoid having these laws dictate who administers your estate and how your property is disposed of, and to allow you to make these choices yourself, you need to do estate planning. This is another complex area that in most cases should have the attention of an attorney who specializes in this type of work. The following are some of the tools an attorney will use to help you.
A will is a written document that states your intentions about disposition of your property - including money, houses, and other possessions - after your death. It also allows you to choose who will see that your wishes are carried out after your death. Some people may have fairly simple, clear decisions that they wish to make known. Others have complex decisions to make and should plan well ahead to ensure that their assets can be passed on in the way they intend. In addition to ensuring that your wishes are known and complied with, making advance plans for your will and estate can help ensure resources for surviving family members to pay necessary taxes.
A trust is a legal arrangement in which a person or an institution such as a bank or trust company, called the trustee, holds legal title to the property and manages that property for the benefit of another person called the beneficiary. As the person setting up the trust, you are the donor or settlor. You may be a trustee, a beneficiary, or only fund it. If the trust is established during your lifetime, it is called a "living" or "inter vivos" trust. If the trust is established through your will after death, it is called a "testamentary" trust.
Trusts can perform many jobs including holding legal title to real estate to maintain privacy or save taxes, handling funds for someone unable to handle their own affairs, preserving funds for minor children or disabled individuals, or protecting property from sale or development. A trust can also be used as a way to avoid the probate process-essentially turning probate property into non-probate property. Some people advocate trusts as a necessary tool to successfully avoid probate. While trusts may save money in certain circumstances, they do not provide the same benefits in Massachusetts as in some other states and should not be the automatic choice for everyone.
Estate planning also should involve a review of potential long-term care issues for you or those you would leave money to. Proper planning using trusts could prevent a loss of public benefits for yourself or your heirs. Another part of estate planning involves the review of potential tax liabilities upon your death and ways to use trusts to minimize or avoid taxes.
Disability Planning for Minor/Disabled Children or Dependent/Disabled Adults
It is important to make plans for the care of minor or disabled children or other family members after a parent or guardian's death and to take appropriate legal steps to ensure that these plans are carried out. Two particular concerns are who will care for a child or disabled person and how the child or disabled person will cope financially without the support of the parent or guardian.
In Massachusetts, parents and guardians have the option to nominate or appoint a successor caregiver during their lifetime, called a stand-by guardianship, or in a document prepared as part of the estate plan. Consideration should be given to whom to nominate for this important role, and alternates should be nominated in case the first choice is not available for any reason.
Making financial plans for a child or disabled person means more than just leaving him or her money in an estate plan. Leaving an inheritance to someone who is presently a minor or someone who is or could become disabled can have unfortunate, unintended results. An inheritance may give a minor child access to a large pool of money at a young age before he or she has the maturity to wisely handle it or could remove a disabled child or adult from needed public benefits. A disabled older person who inherits could be required to use the inheritance instead of Medicaid to pay for long-term nursing home care.
With proper planning, trusts can be set up to ensure that minors receive money when they are able to handle it, but that it is available to be used for medical or educational expenses if needed. Similarly, "supplemental needs" trusts can be set up for disabled or older adults tol protect their public benefits while providing a needed source of supplemental funds to pay for extras not covered by public benefits. These areas of the law are a complex mix of state and federal laws and regulations. Seeking the advice of a qualified attorney will help you ensure that disability planning accomplishes its intended result.
Finding a lawyer
Many decisions that individuals or families must make related to end of life are legal issues. In addition to providing legal advice about existing laws and options in making these decisions, an attorney will assist in making sure that necessary documents are correctly prepared. In some cases, there may be legal proceedings requiring representation.
For any legal issue related to end of life care, find an attorney who is experienced in the particular area of concern. Seeking recommendations from family, friends, and colleagues who have had similar legal issues is one possible option. The Massachusetts and Boston Bar Associations both have lawyer referral services that offer advice in how to seek the right lawyer for your needs and can assist in identifying possible lawyers for you to contact.
If you know any attorneys, ask them for a referral to a specialist. An attorney is in a good position to know other qualified attorneys who handle such issues. Such persons are often the best and safest sources of referrals.
Ask Questions First
Ask a lot of questions before selecting an attorney. Start during the initial phone call. It is not unusual to speak only to a secretary, receptionist, or office manager during an initial call or before actually meeting with the attorney. If so, ask this person your questions.
- How long has the attorney been in practice?
- Does the attorney's practice emphasize a particular area of law?
- How long has the attorney been in this field?
- What percentage of the attorney's practice is devoted to this area of the law?
- Is there a fee for the first consultation and, if so, how much is it?
- Given the nature of your problem, what information should you bring with you to the initial consultation?
The answers will assist you in determining whether that particular attorney has the qualifications important to you for a successful attorney/client relationship. If you have a specific legal issue that requires immediate attention, be sure to inform the office of this during the initial telephone conversation.
Once You Have Found an Attorney
When you have found an appropriate attorney, make an appointment to see him or her. During the initial consultation, you will be asked to give the attorney an overview of the reason you are seeking assistance, so be sure to organize and bring all the information pertinent to your situation.
After you have explained your situation, ask:
- What will it take to resolve it?
- Are there any alternative courses of action?
- What are the advantages and disadvantages of each possibility?
- How many attorneys are in the office?
- Who will handle your case?
- Has that attorney handled matters of this kind in the past?
- Is that attorney a member of the local bar association, its health advocacy committee, or its trust and estates committee?
- Is that attorney a member of the National Academy of Elder Law Attorneys?
- How are fees computed?
- What is the estimated time and cost to resolve your problem?
There are many different ways of charging fees. Be aware of how your attorney charges and how often he or she bills. Some attorneys bill weekly, some bill monthly, and some bill upon completion of work. Ask about these matters at the initial conference so there will be no surprises. If you don't understand, ask again. If you need clarification, say so. It is very important that you feel comfortable in this area.
Some attorneys charge by the hour, with different hourly rates for work performed by attorneys, paralegals, and secretaries. If this is the case, find out what the rates are. Other attorneys charge a flat fee for all or part of the services. This is not unusual, for example, if you are having documents prepared. Your attorney might use a combination of these billing methods.
In addition to fees, most attorneys will charge you for out-of-pocket expenses. These expenses typically include charges for copies, postage, messenger fees, court fees, deposition fees, long distance telephone calls, and other such costs. Find out if there will be any other incidental costs.
The attorney may ask for a retainer. This is money paid before the attorney starts working on your case that is usually placed in a trust account. When the attorney bills you, he or she is paid out of that account. Expenses may also be paid directly from the trust account. The size of the retainer may range from a small percentage of the estimated cost to the full amount.
Get It in Writing
Once you decide to hire the attorney, ask that your arrangement be put in writing. This could be done in a letter or a formal contract. It should spell out what services the attorney will perform for you and what the fee and expense arrangement will be. However, even if your agreement remains oral and is not put into writing, you have made a contract and are responsible for all charges for work done by the attorney and his or her staff.
Make It a Good Experience
A positive and open relationship between an attorney and a client benefits everyone. Communication is the key to achieving this. If your concerns are given short shrift, you don't like the answers to the questions, you don't like the attorney's reaction to being asked all those questions, or you simply do not feel relaxed with this particular person, do not hire that person. Only if you are satisfied with the attorney you have hired from the very start will you trust him or her to do the best job for you. Only if you have established a relationship of open communication will you be able to resolve any difficulties that may arise between the two of you. If you take the time to make sure that you are happy at the beginning, you can make this a productive experience for both you and the attorney. You will thank yourself, and your attorney will thank you.
General information on end of life legal matters:
US Living Will Registry
Finding an Lawyer:
Boston Bar Association
16 Beacon Street
Boston, MA 02108
Greater Boston Legal Services
197 Friend Street
Boston, MA 02114
Phone : 800-323-3205 (toll-free) or 617-371-1234
432 Columbia Street
Cambridge, MA 02141
Massachusetts Bar Association
20 West Street
Boston, MA 02111-1218
Lawyer referral service: 617-654-0400 or (866) MASSLRS
Massachusetts Trial Court Libraries
Seventeen (17) public law libraries located across Massachusetts, dedicated to serving legal professionals and the public.
Massachusetts Chapter of the National Academy of Elder Law Attorneys, Inc.
PO Box 67137
Chestnut Hill, MA , 02467
National Academy of Elder Law Attorneys (NAELA)
1604 N. Country Club Road
Tucson, AZ 85716
Barnstable County Bar Association Lawyer Referral Service
PO Box 718
Barnstable, MA 02630
Berkshire County Bar Association Lawyer Referral Service
Use Mass Bar Association Lawyer Referral Service
Bristol County Bar Association Lawyer Referral Service
440 County Street
New Bedford, MA 02740
Phone: 800-647-5151 or 508-990-1303
Essex County Bar Association Lawyer Referral Service
36 Federal Street
Salem, MA 01971
Phone: 800-228-2574 or 978-741-7888
Franklin County Bar Association Lawyer Referral Service
20 Federal Street, Suite 4
Greenfield, MA 01301
Hampden County Bar Association Lawyer Referral Service
50 State Street
Springfield, MA 01103
Hampshire County Bar Association Lawyer Referral Service
15 Gothic Street, Suite 10
Northampton, MA 01060
Middlesex County Bar Association Lawyer Referral Service
657 Cambridge Street
Cambridge, MA 02141
Norfolk County Bar Association Lawyer Referral Service
15 Cottage Street, Suite 206
Quincy, MA 02169
Plymouth County Bar Association Lawyer Referral Service
47 West Elm Street, Suite 304
Brockton, MA 02301
Worcester County Bar Association Lawyer Referral Service
19 Norwich Street
Worcester, MA 01608
Phone: 800-622-9700 or 508-752-1311