A well-conceived estate plan not only involves preparing for the expected, but for the unexpected as well, such as the possibility of becoming incapacitated. While incapacity planning is often a heightened concern for seniors, anyone can sustain an illness or injury at any time. Regardless of your stage of life, the best way to protect your assets and your well-being is to consult with an experienced elder law and estate planning attorney.
Surprenant and Beneski, PC is dedicated to helping our clients in Southeastern Massachusetts find innovative solutions to their lifetime challenges. We are highly experienced in helping individuals and families prepare for temporary or permanent incapacity. We truly understand that incapacity planning is a sensitive issue. Without a plan, however, your loved ones may be left scrambling to ensure that your needs are met if you cannot make informed decisions about your finances and medical care.
Our legal team will work with you to establish an incapacity plan to protect you, your assets, and your loved ones. By working with our elder law and estate planning attorneys, you can establish an incapacity plan that will put your mind at ease. When you become our client, we will provide you with knowledge, compassionate representation, and the personal attention you deserve. Please reach out to our office today to discuss all your estate planning needs.
What is Incapacity Planning?
Although living longer allows us to enjoy more time with our loved ones, increased medical concerns and health issues are an unfortunate consequence of aging. At the same time, the future is uncertain for individuals of any age, and a serious accident or sudden illness can strike at any time. The best way to protect yourself and your loved ones is to plan for incapacity before it happens.
Incapacity planning is about taking precautionary measures to prepare for temporary or permanent incapacity. In particular, it is crucial to create essential financial management and healthcare decision making documents, including:
- Durable Power of Attorney
- Last Will and Testament
- Revocable Living Trust
- Health Care Proxy
- Advance Directive / Living Will
- HIPAA Authorization
- Massachusetts Medical Orders for Life Sustaining Treatment (MOLST)
Without the proper incapacity planning documents in place, the court will intervene to make decisions that may not agree with your preferences. Working with an experienced incapacity planning lawyer is the wise choice for anyone in need of an estate plan.
Essential Incapacity Planning Documents for Financial Management
At Surprenant and Beneski, we can help you create the following documents as part of a comprehensive incapacity planning strategy:
Power of Attorney
A durable power of attorney allows you to designate an agent to manage your personal and financial matters (e.g. paying bills, managing bank accounts, property and investments, filing income returns) should you become incapacitated. It is important to note that a power of attorney must be completed when you are mentally competent, otherwise it may be deemed invalid by the court. Moreover, the person you designate as your agent must be trustworthy and capable of managing your finances.
If you fail to put a power of attorney in place, the court will appoint someone to manage your financial affairs and may even go as far as establishing a guardian or conservator of your estate. The best way to protect yourself and your assets, and to avoid costly and time consuming court proceedings is to create a power of attorney. The incapacity planning attorneys at Suprenant and Beneski regularly prepare powers of attorney on behalf of a wide range of clients, including individuals, couples, and business owners.
Last Will and Testament (Will)
Although many people are aware of the importance of having a will, nearly 60 percent of Americans do not have a will in place. A will basically establishes how your property will be managed and distributed after you pass away. For those with minor children, a will is the only way to name guardians to care for them. Without a will, your assets will be divided according to the state’s intestacy laws and the court will appoint a guardian who may not share your values.
In short, a will is an important incapacity planning document, especially for young families. Because a will must go through the probate process, incapacity planners should also consider other options, such as establishing trusts.
Revocable Living Trust
A revocable living trust is one that takes ownership of your property but allows you to continue managing it during your lifetime. While many people utilize trusts to avoid probate and minimize estate tax consequences, a revocable living trust is also an essential incapacity planning tool. It is crucial to ensure the trust is properly funded by transferring assets into the trust or retitling those assets in the name of the trust.
The person making the trust (the grantor) can designate a successor trustee to manage the trust assets if/when the grantor becomes incapacitated. To be effective, however, the trust document should include a provision that establishes a process for determining the trustmaker’s incapacity as well as instructions for his or her care. Otherwise, court intervention may become necessary.
Ultimately, by planning for temporary or permanent incapacity in advance, you can ensure that your assets are protected in the event of a medical emergency or sudden illness. At the same time, it is crucial to ensure that your medical needs are met if you cannot communicate your healthcare preferences. It takes a skilled incapacity planning attorney to make sure you have the necessary healthcare documents in place.
Essential Incapacity Planning
Documents for Healthcare Decision Making
If you were to become incapacitated, who would you trust to make healthcare decisions on your behalf? While we all have to grapple with this question, single seniors have unique considerations. Regardless of your family status, the elder law and estate planning attorneys at Surprenant and Beneski, PC can help you prepare the essential healthcare decision making documents. These include:
Health Care Proxy
This legal document allows you to name someone to act as your agent and coordinate your medical care with your doctor in the event of your temporary or permanent incapacity. If you sustain a catastrophic injury in a car accident, for example, a spouse, parent or adult child can step in and make medical decisions on your behalf.
Without a Health Care Proxy in place, your family members or someone close to you will have to ask the court for permission to act as your healthcare agent, which can be especially difficult during a medical emergency. In short, creating a healthcare proxy will relieve them of this burden and ensure that you promptly receive the type of medical care you prefer.
Advanced Directive / Living Will
An Advanced Directive is another type of legal document conveys your wishes for how you would like to be cared for during incapacity. The document declares the type of life-sustaining measures you would like to receive or have withheld (e.g. ventilator, feeding tube) if you become incapacitated. By failing to establish your preferences for end-of-life care and appointing an agent to oversee that care, measures may be taken to prolong your life and your suffering against your wishes.
HIPAA (the Health Insurance Portability and Accountability of 1996) is a federal law that is designed to protect the privacy of your medical information. A HIPAA authorization allows medical providers to release your private healthcare information to healthcare agents and family members in the event of temporary or permanent incapacity, which can help them make informed decisions about your medical needs. Consider being able to access medical records, speak with an insurance provider, or inquire about prescriptions at the pharmacy. Without a HIPAA authorization, your loved one may not be able to do these things on your behalf.
Massachusetts Medical Orders for Life Sustaining Treatment (MOLST)
A MOLST (Medical Orders for Life-Sustaining Treatment) form is a state-specific document that includes directions about life-saving measures (CPR/ventilation, intubation, dialysis, antibiotics, artificial hydration and feeding tubes) to all healthcare professionals, including ambulances, EMTs, and hospital/emergency room staff. This is a voluntary form that you prepare with the assistance of a medical professional. While a MOLST allows you to choose whether or not to receive treatment, it is not intended to replace a healthcare proxy or Advanced Directive. A MOLST is a medical order that is completed by a physician, it is important that, if a MOLST is necessary, that it works in conjunction with your other documents.
Without a MOLST, however, EMTs and hospital staff are required to use any means to resuscitate you and keep you alive. Finally, a MOLST should be kept in a place where it is easily accessible (e.g posted on the refrigerator), and taken with you in an emergency.
Other Incapacity Planning Considerations
In addition to putting these healthcare decision-making documents in place, it is critically important that the person you name as your healthcare agent is willing and able to fulfill his or her duties. It is also wise to discuss your incapacity plan with family members and loved ones to prevent misunderstandings and disputes. Finally, your healthcare decision-making documents should be kept in a safe place; however, your trusted family and/or friends should know where these documents are in an emergency. There are also services that provide advanced cloud-based storage systems to maintain your vital health information.
Why You Need Surprenant and Beneski, PC
Confronting our own mortality or the possibility of being incapacitated is never easy, however, being prepared in advance is the responsible thing to do. Working with the right attorney can mean the difference between protecting yourself and having an ineffective incapacity plan.
At Surprenant and Beneski, PC, you have the benefit of working with Certified Elder Law Attorneys (CELA). In fact, Managing Partners Daniel Surprenant and Michelle Beneski are only 2 of 25 CELA attorneys practicing in Massachusetts. Daniel and Michelle are not only well-versed in elder law, trusts and estates, they are compassionate people who love what they do and care about their clients.
Our legal team is uniquely qualified to meet the estate planning needs of older, maturing clients, young families, business owners, and individuals from all walks of life. When you consult with us, we will take the time to understand your circumstances and listen to your concerns. We know that no two estate plans are the same, and understand that you have unique needs.
Whether you only require a will-based plan or can benefit from utilizing trusts, we will work closely with you to establish the essential financial and healthcare decision-making documents. In addition, we will work closely with you to make sure that beneficiary designations on your bank accounts, life insurance and retirement plans are aligned with your estate plan. It is important to remember that these assets typically pass outside of your estate, however.
Contact Our Southeastern Massachusetts Incapacity Planning Attorneys
While incapacity planning is a particular concern of elders, establishing an incapacity plan is an important consideration for anyone. Without the essential financial and healthcare decision-making documents in place, the court will appoint individuals to make financial and medical decisions on your behalf. With so much at stake, it is crucial to establish an incapacity plan.
With offices in New Bedford, Easton and Hyannis, Surprenant and Beneski, PC provides clients in Southeastern Massachusetts, Cape Cod and the Islands with first-rate representation and compassionate incapacity planning services. Our objective insights will allow you to establish an incapacity plan that protects your legacy. We are available for consultations to discuss your estate planning options through conference calls and on-line meetings.
Above all, we will address your concerns by providing you with trustworthy advice so that you can make the right decisions about your future and your welfare. By establishing an incapacity plan, you will have peace of mind, knowing that your wishes will be carried out and your well-being will be protected. Please contact our office today to speak with our knowledgeable incapacity planning attorneys.