When most people hear the term “estate planning,” they think about planning for the distribution of their assets after they die. But what if you become incapacitated by illness or an accident, leaving you unable to manage your own affairs while you are still very much alive? It happens.
Without a plan in place to address that possibility, your loved ones will be unable to make your health care decisions and unable to manage your financial affairs. It may surprise you to know, under Massachusetts law, that your spouse does not automatically have the right to make your health care decisions just because you are married.
Every adult should not only have a will, but also have a Health Care Proxy and a Durable Power of Attorney.
Advantages of a Health Care Proxy
In a Health Care Proxy, you appoint a trusted relative or friend to make health care decisions for you if you become incapacitated by an accident or an illness. If you do not have a Health Care Proxy, then your spouse or someone else must file a petition in a probate court, seeking to be appointed as your Guardian. The guardianship process is neither swift nor cheap, and it sometimes becomes bitterly contentious.
When you choose a health care agent, bear in mind that your agent will be required to make difficult decisions. Before you make a final choice, ask your nominee whether he or she is willing to serve as your agent.
While your agent will act on your behalf if you are incapacitated, a Health Care Proxy also ensures that you will retain your autonomy as long as possible. For example, a parent can help their 18-year-old schedule doctor’s appointments, a parent or other family member or friend of an adult with special needs can help them manage their health decisions, or an adult child can help an aging parent with their health decisions. An agent can also help an individual with tasks of daily life.
It is particularly important for young adults, as well as older adults, to have a health care proxy. Because an 18-year-old is an emancipated adult in Massachusetts, a parent has no authority to make their adult child’s health care decisions or even to receive medical information from their physician. This can be very confusing and upsetting for parents, but the adult child’s right to privacy is legally mandated by the Health Insurance Portability and Accountability Act (HIPAA). If the young adult has a medical emergency but has no Health Care Proxy, parents cannot get access to confidential medical information and cannot make any health care decisions for their child, unless and until the parents complete a guardianship proceeding.
Why You Need a Durable Power of Attorney
In a Durable Power of Attorney, you appoint a person to act on your behalf to manage your financial matters if you become unable to do so yourself. Without this important estate planning document, your financial institutions will not allow anyone to have access to any of your accounts that stand in your name alone. That situation can cause serious financial problems.
Today, many couples, married or not, choose to bank separately rather than to have joint accounts. In those cases, your partner must petition the probate court to be appointed as your Conservator while you are incapacitated. That kind of proceeding can become ugly if more than one of your relatives or friends thinks that he or she is more trustworthy than the others.
Proper planning, both for your health care and financial needs, in case of a medical emergency, chronic or acute illness, or other incapacitating life crises, will save you and your loved ones much heartache and many headaches. Please inquire with us if you would like to complete a Health Care Proxy and/or a Durable Power of Attorney.
