Estate Planning

Lifetime Estate Planning Documents

These documents enable the client to control what will happen to them & their assets during their lifetimes.

1. Health Care Proxy

• Client names a health care agent who will have the legal authority to make medical decisions on the client’s behalf in the event of the client’s incapacity
• Determination of incapacity is made by the client’s attending physician and that determination triggers the authority granted in the Health Care Proxy
• Consider naming an alternative agent, but try not to name two or more to serve together due to urgent nature of decisions, conflict and inability to reach another agent

2. Living Will Declaration

• Written expression of the Principle’s wishes with respect to health care
• Directives not legally binding but serve as a guide to the Health Care Agent

3. HIPAA Authorization (HIPAA = Health Insurance Portability & Accountability Act)

• Designates the individual(s) as the client/patient’s HIPAA Representative
• Necessary to obtain any confidential health related information about the client

4. Durable Power of Attorney

• Allows an agent to perform all legal and financial functions for a Principle who is out of town or incapacitated
• Important tool in the event one spouse owns title individually and needs the other to perform a financial or legal task
• Durable powers continue during the actual incapacity of the Principle
• Powers extinguish at the death of the Principle

Other Estate Planning Documents

These documents enable the client to control what will happen to their assets after they pass away.

1. Last Will and Testament

• Affords the client the opportunity to specify to whom they wish to leave their probate assets rather than allowing their assets to pass to their heirs by operation of law
• Names a Personal Representative who will be in charge of the distribution of these assets
• Probate is the process of having the terms of the Will officially carried out
• Without a Will, estate is administered by the MA Uniform Probate Code
• Surviving spouse has right to claim a statutory share of the estate

2. Trusts
The Trust relationship is created by the transfer of title to property from the settlor to a trustee to be managed by the trustee for the benefit of the beneficiaries designated by the trustee.

a. Revocable Trust: voluntary trust that may be altered or amended or revoked by settlor

• Allows gift under Will to be managed by trustee
• Private arrangement under a trust agreement that will not be “subject” to the probate court
• Very advantageous in protecting donor in event of incapacity

b. Irrevocable Trust: trust that the grantor can not amend or revoke

• Usually used for tax considerations or placing assets beyond the reach of creditors
• You can’t establish a trust for your own benefit and keep it beyond creditors