Taking the time to understand the value of foundational documents as the base of your estate plan can help your family tremendously. Most Americans know that we should have an estate plan, or at the very least, a will. Nonetheless, it is easy to procrastinate creating foundational estate planning documents, especially with the busy lives many Americans live. Estate planning doesn’t need to be difficult, however. Taking some time to complete foundational estate planning documents can help you and your family be prepared for the unexpected.
Surprenant & Beneski, PC, is a premier elder law and estate planning law firm serving clients throughout Southeastern Massachusetts from our office locations in Hyannis, Easton, and New Bedford. Attorneys Daniel Suprenant and Michelle Beneski have vast experience helping clients create thorough estate plans that include foundational estate planning documents. If you’re looking for experienced, established estate planning attorneys, contact our law firm today to schedule your initial consultation.
Foundational Estate Planning Documents
1. Durable Power of Attorney
Massachusetts allows individuals who are of sound mind to create a durable power of attorney (DPOA). A DPOA is a legal document in which an individual, the principal, appoints another person to act as an agent in the event of incapacitating illness. Taking time to complete a durable power of attorney safeguards the principal and his or her family and heirs.
Individuals can choose to create a specific or general DPOA. In a specific DPOA, the principal of the document limits the authorized actions of the agent. For example, a specific DPOA might only allow the agent to make medical decisions when the principal of the DPOA is medically incapacitated. On the other hand, a general DPOA grants the agent broad powers to take the following types of actions:
- Making financial decisions on behalf of the principal
- Making health care decisions in a variety of situations
- Preparing and executing a will on behalf of the principal
Individuals who pass away without a valid DPOA in place are at the mercy of the Massachusetts Probate Court. Probate courts have the legal authority to appoint a guardian to make decisions on behalf of the incapacitated person. Creating a DPOA allows the principal to select the agent of their choice. Individuals with a DPOA often avoid additional legal complications, expenses, and uncertainty.
2. Health Care Proxy
A health care proxy is typically a simple legal document in which the creator or principal appoints a health care representative to make health care decisions on his or her behalf when he or she becomes incapacitated. A health care proxy form gives a clear explanation of the duties of the health care agent. Health care proxies might also be called agents or an attorney-in-fact.
3. HIPAA Release
It is wise to fill out a HIPAA release document and include the document in your foundational estate planning plan. Doctors and other healthcare providers cannot provide health care information to a third party without obtaining written authorization from the patient. In medical emergencies, family members can face extreme frustration when trying to gain information about their loved one’s condition. In life or death situations, providing health care providers a signed HIPAA release can help loved ones make informed medical decisions as quickly as possible.
4. Advanced Directives
An advanced directive is a legal document that contains the principal’s wishes regarding health care instructions. The terms in the advanced directive come into effect should the principal become incapacitated and unable to make his or her own decisions. In many instances, an advanced directive includes guidelines as to whether or not to keep the individual on life support or discontinue life support. In the state of Massachusetts, advanced directives are not legally binding. The document serves as guidance to loved ones and healthcare providers, helping them to follow your wishes. This can help prevent disagreement and discord at an already emotional time.
Other Estate Planning Documents
Last Will and Testament
A Massachusetts last will and testament allows the testator or creator of the will to plan the distribution of his or her estate upon death. The testator can name a personal representative of his or her choice and provide for his or her surviving spouse, children, or other loved ones.
A significant benefit of creating a will is that the testator gets to choose the beneficiaries who inherit the estate assets. When a person dies intestate, or without a will in place, Massachusetts probate courts appoint a personal representative and distribute the assets according to statutory inheritance laws. Creating a will speeds up the probate process, offers clarity to surviving loved ones, and avoids a possibly lengthy intestate process.
Sometimes Massachusetts residents assume that they don’t have enough assets to justify writing a will. At Surprenant & Beneski, PC, our attorneys advise everyone who is over the age of 18 to create a will regardless of their level of income. Nearly everyone has items of personal property that they’d like to distribute to surviving loved ones.
Creating a Massachusetts Living Trust
More Americans than ever are choosing to create trusts as part of their estate planning. A Massachusetts living trust allows the creator of the trust to keep his or her assets during life and then direct their distribution at death. There are dozens of types of trusts, but most allow the grantor to specify who will receive the assets (and how) upon his or her death.
One of the main benefits of creating a trust is that the probate process can be avoided. Probate is the legal process in which a probate court determines that a will is valid. The probate process can increase attorney’s fees, court fees, and can tie up the property and liquid cash assets for a significant period.
When the creator or grantor of the trust dies, the assets in the trust transfer to the beneficiaries automatically. The beneficiaries do not need to submit the trust to probate, avoiding a time consuming, and often costly process. Trusts are essential estate planning tools for everyone, not just wealthy individuals.
Need Guidance with Any of These Estate Planning Documents? Our Estate Planning Attorneys Can Help
If you need to create foundational estate planning documents, the attorneys at Surprenant & Beneski, PC, can help. Contact our Southeastern Massachusetts law firm today to set up your initial consultation.