Common Elements Of An Estate Plan
An estate plan is more than just writing a will, and if done properly an estate plan can provide a comprehensive roadmap of your wishes in your twilight years and beyond. At Fisher Law, our knowledgeable and experienced Norwood estate planning lawyers can review the documents most commonly included in an estate plan and help determine what is necessary to fit your needs. To learn more about drafting or amending an estate plan, call or contact our office today to schedule a consultation.
Last Will and Testament
One of the most common documents found in an estate plan is a final will and testament. This document dictates how a person wants their estate assets to be distributed after their passing Anyone named in a final will is called an heir, and it can include family, friends, organizations, and institutions that the person wishes to leave assets to.
The distribution of estate assets may also be made via a living trust, were a person (called the trust maker, grantor, or settlor) may place assets into during his or her life for the benefit of others, known as beneficiaries. One benefit of creating a trust is that the assets transferred to the trust during the trust maker’s lifetime , or paid/transferred on death to the trust (for example, where the trust is named as the death beneficiary on a life insurance policy, IRA, 401(k), or brokerage account) bypass the probate process and can be distributed immediately to beneficiaries of the trust.
Durable Power of Attorney
Another element of a comprehensive estate plan is a Durable Power of Attorney form. This document gives another person the authority to make legal and financial decisions on someone’s behalf. A power of attorney can be effective as soon as the form is signed, or it can spring into existence after a triggering event like an injury or diagnosis of dementia. The person named in the document is called an attorney-in-fact and should be one who can be trusted to make financial decisions that are in the principal’s best interest. Typically, the attorney-in-fact named can access the principals bank account to pay everyday bills, such as utility bills or real estate taxes during a period of time that the principal can no longer manage his or her financial affairs, sign tax returns, manage the principal’s investment portfolio, hire home health aides, or sign a contract with an assisted living facility or a skilled facility. These are the typical financial transactions that an attorney-in-fact is authorized to perform on behalf of the principal but the document should specify every type of transaction authorized.
An estate plan can also direct the wishes of a person while they are still living. An advance directive of living will is a document that dictates a person’s medical wishes if they are unable to communicate them due to an illness or injury. In Massachusetts, a living will is not legally binding; however, it does communicate to medical professionals and to those individuals acting under a Health Care Proxy that person’s end of life decisions. While the Advance Directive or Living Will will specify that the person signing the document does not want life sustaining measures where he or she is terminally ill or in a vegetative state, the decision to actually remove an individual from these measures will be made by the person(s) named under the Health Care Proxy. .
Health Care Proxy
One of the last documents commonly found in an estate plan is a Health Care Proxy . This document operates similarly to a Durable Power of Attorney in that it names the person(s) who are authorized to make decisions on behalf of an individual when that person is no longer able to make health care decisions. The only difference between a Health Care Proxy and the Durable Power of Attorney is that person(s) named have the right to make medical decisions, as opposed to financial decisions. Sometimes, the person(s) named in the Durable Power of Attorney and the Health Care Proxy are the same, and sometimes they are different, especially when family members include both financial and medical professionals that are better suited for a particular function. There are benefits to naming a financial professional as the attorney-in-fact under the Durable Power of Attorney and naming a physician or nurse under the health care proxy. The challenge in having different agents is ensuring that the agents communicate and coordinate efforts as the implementation of health services is dependent on access to financial accounts. , The Health Care Proxy will specify the types of medical decisions that the proxy can make for an individual and may include a general authorization for the following:
- Allowed or disallowed medications,
- Allowed or disallowed medical treatments,
- Palliative care choices,
- Use of breathing tube,
- Use of feeding tube,
- Use of blood transfusions,
- Do Not Resuscitate form, and more.
While the document provides a blanket authorization for these types of decisions, without separate verbal or written instructions that apply to varying situations, e.g., when to use a feeding tube and for how long, the agent named in the document will have to make medical decisions that they believe are in the best interest of the person they speak for. Communication about end of life issues and the expanse of medical treatment with a named health care proxy (and all alternates named in the document) is prudent.
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Do you have more questions about estate planning? If so, the experienced lawyers at Fisher Law are here to help. Call or contact our office today to schedule a consultation of your legal needs.