Creating a plan for your future in the early stages of the disease to ensure your wishes are met can be empowering. The sooner legal plans are established, the better prepared you and your family will be! It is nor-mal to feel overwhelmed by the details of legal planning, but remember that not all elements may apply in your situation. Have conversations with your care partner about the legal plans that you would like in place.Learn More About Our Medicaid Planning Attorney
What should my Legal Plans include?
Although there is no “one size fits all” when it comes to legal planning, there are basic things that you should do:
- Make an inventory of legal documents. Review them and update if needed.
- Make legal plans for finances and property.
- Make plans for enacting your future health care and long-term care preferences.
- Make sure you name someone to make decisions on your behalf when you no longer can.
What is “Legal Capacity?”
During the process, you may hear the term “legal capacity.” This is your ability to put in place a legal document. Legal capacity is the ability to understand the consequences of your actions and to make rational decisions. It is important to understand because it does have an effect in later stages of the disease when important care issues arise. Creating a legal document does not imply that your rights are immediately revoked. You can take steps to ensure that the legal forms that you complete now will not be implemented until you legally no longer have the capacity to make decisions.
What is a Power of Attorney?
The power of attorney document allows you to name another individual (an agent) to make financial and other decisions for you, either now or when you are no longer able. A successor agent/agent should also be named in case the original agent you choose is unavailable or unwilling to serve. A power of attorney does not give the person you
appoint (agent) the authority to override your decision making. You maintain the right to make your own decisions, as long as you have legal capacity.
What is the difference between a general power of attorney and a durable power of attorney?
Power of attorney documents should be written so that they are “durable,” meaning that they are valid even after you, the principal, are no longer able to make decisions for your-self. If a power of attorney document does not explicitly say that the power is durable, it ends if you become incapacitated.
What is a Health Care Proxy?
A health care proxy allows you to name a health care agent to make health care decisions on your behalf when you are no longer able. Health decisions covered by the healthcare proxy include:
- Doctors and other health care providers
- Types of treatments
- Care facilities
- End-of-life care decisions, such as the use of feeding tubes
- Do not resuscitate (DNR) orders
Discuss your wishes regarding care with your chosen agent early and often to make sure that this person understands your wishes and is willing and able to act on your behalf when the times comes.
What is a HIPPA Release?
A HIPAA (Health Insurance Portability and Accountability Act) Release form allows you to give consent to certain individuals speaking with your doctors and gathering medical information.
What are Advanced Directives (Living Wills)?
Advance directives are legal documents that allow a person to document preferences regarding treatment and care, including end-of-life wishes. An Advanced Directive expresses your wishes for what medical treatment you want, or do not want, near end of life, such as life-prolonging treatments. Although not legally binding in Massachusetts, a Living Will can offer guidance regarding your wishes to your family and medical caregivers, lessening the emotional burden of these types of decisions.
Last Will & Testament
A Last Will & Testament will provides information about how your probate estate will be dis-tributed upon death. In your will, you may name an executor, the person who will manage your estate, and beneficiaries, the person(s) who will receive the assets in the estate. The executor named in the will has no legal authority during your lifetime. Please see your attorney regarding which of your assets are “probate assets.”
Guardianship / Conservatorship
At the point when you are no longer able to make your own legal, financial and/or health care decisions, and if you did not establish a Health Care Proxy, someone else may have to step in as your guardian (also known as a “conservator” in some U.S. states) to coordinate your care. In this case, the guardian is appointed by a court to make decisions about your healthcare. Similarly, if you do not have a Durable Power of Attorney, a conservatorship proceeding will be needed for legal and financial decisions. This may be a person who is not known to you or your care partner, typically an attorney or a bank. Guardianship and conservatorship proceedings can be an arduous and emotionally taxing process for everyone involved.
©Surprenant & Beneski, P.C. 35 Arnold Street, New Bedford, MA 02740, 336 South Street, Hyannis MA 02601 and 45 Bristol Drive, Easton MA 02375. This article is for illustration purposes only. This handout does not constitute legal advice. There is no attorney/client relationship created with Surprenant & Beneski, P.C. by this article. DO NOT make decisions based upon information in this handout. Every family is unique and legal advice can only be given after an individual consultation with an elder law attorney. Any decisions made without proper legal advice may cause significant legal and financial problems.Learn More About Our Medicaid Planning Attorney