Estate Planning

Believe it or not, you have an estate. In fact, nearly everyone does. Your estate consists of everything you own: your car, home, other real estate, checking and savings accounts, investments, life insurance, furniture, personal possessions. No matter how large or how modest, everyone has an estate and something in common you cannot take it with you when you die.

When that happens (and it is if not when), you probably want to control how those things are given to the people or organizations you care most about. To ensure that your wishes are carried out, you need to provide instructions stating whom you want to receive something of yours, what you want them to receive, and when they are to receive it. You will, of course, want this to happen with the least amount paid in taxes, legal fees, and court costs.

That is estate planning making a plan in advance, naming the people or organizations you want to receive the things you own after you die, and taking steps now to make carrying out your plan as easy as possible later.

Powers Of Attorney

A power of attorney is a legally binding document that allows you to appoint someone (attorney-in-fact) to manage your financial affairs. This document is generally used when you unable to manage your own finances due to an illness, aging, a disability, or you are simply going to be away for an extended period of time. A Power of Attorney can be created by any person 18 or older.

There are two different types of Powers of Attorney. An immediate Power of Attorney takes effect immediately after signing. A springing Power of Attorney only takes effect if a doctor certifies in writing that you have become incapacitated.

A Power of Attorney is one of the most important estate planning documents that a person can sign because without this document your family will end up having to file a conservatorship in the probate court, which is expensive and time consuming.

Health Care Proxies

A Health Care Proxy is a legal document which tells medical providers (doctors, hospitals, etc.) who should make health care decisions for you if you are unable to make your own decisions. The reason may be that you are unconscious, cannot communicate or your mental state has deteriorated to the point where you are not capable of making informed decisions. A Health Care Proxy may also be referred to as health care surrogate or durable medical power of attorney.

The person you name in your Health Care Proxy to make medical decisions on your behalf is called your agent or surrogate.

Many people name their spouse or adult children as their health care proxy. However, this is not a requirement. You can name anyone you trust as your health care agent, even if they are not a family member. You can also change your named agent any time by signing a new Health Care Proxy and providing it to your family and doctor.

Living Wills

People often confuse a Living Will with a Health Care Proxy.  A Living Will, in some states, is a legally binding document. However, Massachusetts law does not recognize Living Wills.

You can draft and sign a Health Care Proxy, giving a trusted individual the authority to make medical decisions on your behalf. You can, and should also give that person as much information as you can about what you wishes are for end-of-life matters.  In the end though, in Massachusetts, the person you designate as your health care agent will have the power to make all your end-of-life decisions.

Therefore, it still makes sense to sign a Living Will. For one, it is something your health care agent can refer to when making difficult decisions.  For another, if you end up injured in a state that does recognize Living Wills, it can help ensure that your end-of-life wishes are followed.

Health Care Proxy Living Will
Specifies who can make health care decisions for you if you are incapacitated Gives specific instructions for your care if you are unable to communicate
Used not just for end-of-life care, but also in situations where you are incapacitated Typically used when you have a terminal illness or injury or there is no reasonable expectation of your recover

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To Your Legal Issues

Are Living Trusts valid in all 50 states?

Yes. A Living Trust is valid in all states and in most foreign countries.

Can I borrow against the assets in the Trust?

Yes. The Trust does not restrict your rights to borrow on assets in any way.

Can I appoint a minor child as my Successor Trustee?

No. The minimum age for a Successor Trustee is eighteen years.

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