Law Offices of Jameson & Cooper 8 Grove Street, Suite 205 Wellesley, Massachusetts 02482 Telephone: (781) 237-7766 Email:hwc@jamesoncooper.com |
Estate Planning, Health Care Proxies, and Guardianships
We each have our own priorities concerning gifts, either during life or upon death. You may be most concerned with assuring that your spouse has sufficient money to enjoy a comfortable lifestyle. You may also wish to maximize the amount of property passing to your children or other beneficiaries. Some wish to leave property to individuals outside the family, or to charitable institutions. For large bequests to children, parents may wish to limit children's access to the principal until a child finishes college or university or reaches a more mature age. The estate planning process focuses on your fundamental goals while taking into account practical options for estates of different sizes, and tax ramifications of alternatives. The process involves tradeoffs between taxation, control, and responsibility of the beneficiary. The estate planning process allows you to consider the impact of each alternative.
An executor carries out your wishes as stated in your will. A trustee carries out the terms of your trust. Of course, your executor or trustee will have the ability to call upon the assistance of your attorney and accountant and investment advisers, as needed. The persons selected should be comfortable with the responsibilities of overseeing the winding up of your affairs. In the event the primary executor or trustee is unable to serve, you may also designate an alternate.
For couples with minor children it is important to choose an appropriate guardian to serve should both parents die before your children are adults. In some instances, it may be desirable to split the duties of taking care of the children and taking care of property left in trust for the children, depending upon the skills of the proposed caretakers.
Couples whose combined estates are over $1,000,000 may wish to set up their estates in such a way as to preserve the maximum exemption amount which can pass free of Massachusetts, Maryland, or federal estate tax. Although property passing to a surviving spouse generally passes free of estate tax, upon the death of the surviving spouse, the potential to pass a total of $2,000,000 of your combined estates free of state estate tax and up to $7,000,000 (projected) free of federal estate tax to your children may be lost if proper planning is not done prior to the death of the first spouse. There are a variety of techniques available to save estate taxes, but each requires certain trade-offs . It is important to learn the drawbacks of the various techniques prior to executing any document with testamentary effect. Different states have different estate tax thresholds, and because of the impact of the federal estate tax phaseout on states, states may reinstitute estate taxes at levels lower than the current federal estate tax threshold.
At the same time you are planning your estate, you should also consider whether you wish to execute a Power of Attorney. A "Power of Attorney" can give a trusted individual the authority to do anything with your property, money, and securities that you could do yourself in person. In case of your absence or incapacity, you may wish someone else to be able to act upon your behalf, but you must give them the power to do so prior to your absence or incapacity. A Durable Power of Attorney will allow someone to act even if you become incapacitated. A springing power of attorney will only become effective in the event that you are found to be without capacity to act. A limited power of attorney authorizes your agent to act only in specific circumstances or with regard to specific property.
By executing a Health Care Proxy, you designate an individual to make health care decisions on your behalf. Some patients do not wish to have "heroic measures" performed if death is imminent or they are in a persistent vegetative state. You may direct your Health Care Agent, through the Health Care Proxy's section on desires of the patient, to prohibit "heroic" measures in those situations and direct the doctors that you be allowed to die naturally, allowing only measures intended to increase your comfort but not extend the process of dying. In any event, your health care agent will consult with the doctors attending to your health. Some states (including Maryland) permit a living will, which dictates to your health care providers what medical measures are not to be performed on you in the event of a persistent vegetative state or imminent death, subject to any limitations provided by law. Mandatory instructions (e.g. "Do Not Resucitate", DNR) to emergency care providers (ambulance drivers, nursing home staff, etc.) generally require a doctor's signature, on a state-authorized form or otherwise, and must be immediately physically available to the emergency care provider.
There may come a time in your life when you have lost the capacity to make decisions on your own behalf, either through an accident, through illness, or through certain diseases associated with aging. If you have executed a durable power of attorney and a health care proxy, the attorney-in-fact named in your power of attorney, and the health care agent named in your health care proxy may be able to take care of all your personal, medical, and financial decision making, with input from you if possible. However, some diseases cause mental states which cause the person afflicted to act irrationally and in such a way that they put themselves and others at serious risk. In this case, it may be necessary for your loved ones to seek appointment of a guardian for you in court. Your guardian is then responsible for medical, personal, and financial decision making on your behalf. In Massachusetts, the guardian is not authorized to allow treatment with antipsychotic medications unless specifically authorized by the court.
While planning your estate, you are also encouraged to discuss end of life issues with your loved ones so that in the event of an irreversible medical condition or in the course of the natural cycle of life, they know your wishes, including any religious beliefs which you want them to apply. You may also wish to complete an organ donor card, to keep in your wallet.
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Our email address is: hwc@jamesoncooper.com
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