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As an individual approaches the end of life, many legal issues may arise,
including medical decisions, financial and estate planning decisions,
and care for dependents. Planning in advance for these issues will give
you greater assurance that your wishes regarding these decisions will be carried
out.
Legal
Options for Decision-Making on Behalf of a Living Person
There is always the possibility that you will reach a point where you cannot make or communicate decisions for yourself. When this happens, a bank, hospital, or other service provider may need to know who is authorized to act for you. If they choose the wrong person, they may be held liable for a wrong decision. There are tools to help you plan for who will make these decisions and laws that provide ways to address unplanned situations.
Healthcare Proxy
A healthcare proxy is a document allowing you to
designate another person (an 'agent') authorized to make health care decisions
for you in the event that you are unable to make or to communicate healthcare decisions. This is described in more detail in Advance Care Planning.
This document must be put into place before you are unable to make or
communicate health care decisions for yourself.
Durable
Power of Attorney
A durable power of attorney is a document providing
for the legal appointment of another person (an 'agent' or
'attorney-in-fact') as your legal representative to make non-medical decisions
for you. It is 'durable' because it does not end if the person giving
the authority becomes incapacitated. The appointment of the agent can
be structured so that it doesn't go into effect until you actually become
incapacitated. This document also must be put into place before you are
unable to make or communicate financial care decisions for yourself.
Guardianship
and Conservatorship
If you don't undertake advance planning, a court may appoint an agent
to make decisions on your behalf. A guardian is a court-appointed agent
responsible for making medical and financial decisions. A conservator is
a court-appointed agent responsible for only financial decisions. Usually,
a court will only appoint a guardian or conservator after you are unable
to make or communicate your own wishes and have failed to put into place
or have revoked a healthcare proxy or durable power of attorney. Your
family and friends may, or may not, have a say in whom the court appoints
as a guardian or conservator. You can nominate someone to act as guardian
or conservator for you if the need arises in a durable power of attorney
document.
If you have
mental health issues, and are taking or need antipsychotic medication
or treatment, a Massachusetts case called Rogers provides
for additional protection for you. Under a Rogers guardianship, the court
appoints an attorney to represent you and approves a specialized treatment plan
that must be followed. A properly drafted healthcare proxy
or durable power of attorney may allow those caring for you to avoid this
process.
Financial
Planning
Toward the end of life, planning sometimes needs to be done to deal with
financial issues that may arise for you if expensive and potentially long-term
medical care is needed or for disabled or dependent persons you may have
been caring for. Financial planning can help you put your finances in
order and maximize your resources both for your care and for your dependent's care.
Good advice
is critical. Some financial advisors may sell products based on the commission
they will receive rather than on what may be in your best interest. If you
are considering the use of a financial planner, find one who is objective
and understands the specific issues that you are confronting. For instance,
while some types of annuities will protect your assets from long-term
care costs, others do not. Some assets are appropriate for investment
in a long-term trust for minors, while some are not. Find a financial planner
who understands the differences.
Planning
for Death
Estate
Planning
Just as important as lifetime planning at end of life is planning for
death. Most people who die own something that needs to be passed on to
others. It could be money, personal items, or even a last statement or
sentiment. "Estate planning" in its most basic sense is setting
in place documents that define how you want to dispose of these items.
In Massachusetts,
there are laws that define how to deal with the property of a person who dies,
known as the 'estate.' The process of administering this property, called
probate, is done through a special set of courts called the probate courts.
The probate process involves appointing someone to administer the estate,
who then collects the property, pays debts and expenses, and distributes
the property to those you leave behind.
It is important
to realize that all property you have at death either passes through the
probate process (called probate property) or goes outside of the process
(non-probate property). This distinction can be very important, and mistaking
one for the other can have dire consequences. Non-probate property, such
as life insurance or qualified retirement plans, where there is a person
or charity named as beneficiary, does not generally need to be administered.
When you die the beneficiary simply proves your death and receives the
benefits. For probate property, the holder of that property, for instance,
a bank or stock company, needs to know whom to turn the property over to.
They rely on the probate process to authorize someone to act for the estate
and see to the disposition of the property in accordance with your wishes.
If you don't
plan in advance, the Commonwealth has provided a set of laws that describes who gets
appointed to administer your estate and how they dispose of the property.
Unfortunately, these laws do not typically provide for the same disposition
as you would. For instance, if you die with a spouse and children, the
spouse is entitled to only a portion of your estate and the children,
regardless of age, receive the rest.
To avoid
having these laws dictate who administers your estate and how your property
is disposed of, and to allow you to make these choices yourself, you need to do
estate planning. This is another complex area that in most cases should
have the attention of an attorney who specializes in this type of work.
The following are some of the tools an attorney will use to help you.
Will
A will is a written document that states your intentions about disposition
of your property - including money, houses, and other possessions - after
your death. It also allows you to choose who will see that your wishes
are carried out after your death. Some people may have fairly simple,
clear decisions that they wish to make known. Others have complex decisions
to make and should plan well ahead to ensure that their assets can be
passed on in the way they intend. In addition to ensuring that your wishes
are known and complied with, making advance plans for your will and estate
can help ensure resources for surviving family members to pay necessary
taxes.
Trust
A trust is a legal arrangement in which a person or an institution
such as a bank or trust company, called the trustee, holds legal title to
the property and manages that property for the benefit of another person
called the beneficiary. As the person setting up the trust, you are the donor or settlor. You may be a trustee, a beneficiary, or only fund
it. If the trust is established during your lifetime, it is called a "living"
or "inter vivos" trust. If the trust is established through
your will after death, it is called a "testamentary" trust.
Trusts can
perform many jobs including holding legal title to real estate to maintain
privacy or save taxes, handling funds for someone unable to handle their
own affairs, preserving funds for minor children or disabled individuals,
or protecting property from sale or development. A trust can also be used
as a way to avoid the probate process-essentially turning probate property
into non-probate property. Some people advocate trusts as a necessary
tool to successfully avoid probate.
While trusts may save money in certain circumstances, they do not
provide the same benefits in Massachusetts as in some other states and
should not be the automatic choice for everyone.
Estate planning
also should involve a review of potential long-term care issues for you
or those you would leave money to. Proper planning using trusts could
prevent a loss of public benefits for yourself or your heirs. Another part
of estate planning involves the review of potential tax liabilities upon
your death and ways to use trusts to minimize or avoid taxes.
Disability Planning for Minor/Disabled Children or Dependent/Disabled
Adults
It is important to make plans for the care of minor or disabled children or other family
members after a parent or guardian's death and to take
appropriate legal steps to ensure that these plans are carried out. Two
particular concerns are who will care for a child or disabled person
and how the child or disabled person will cope financially without the
support of the parent or guardian.
In Massachusetts, parents and guardians have the option to nominate or appoint a successor caregiver
during their lifetime, called a stand-by guardianship, or in a document prepared
as part of the estate plan. Consideration should be given to whom to
nominate for this important role, and alternates should be
nominated in case the first choice is not available for any reason.
Making financial
plans for a child or disabled person means more than just leaving him
or her money in an estate plan. Leaving an inheritance to someone who
is presently a minor or someone who is or could become disabled can have
unfortunate, unintended results. An inheritance may give
a minor child access to a large pool of money at a young age before he or
she has the maturity to wisely handle it or could remove a disabled
child or adult from needed public benefits. A disabled older person who inherits could be required to use the inheritance
instead of Medicaid to pay for long-term nursing home care.
With proper
planning, trusts can be set up to ensure that minors receive money when
they are able to handle it, but that it is available to be used for medical
or educational expenses if needed. Similarly, "supplemental needs"
trusts can be set up for disabled or older adults tol protect their public
benefits while providing a needed source of supplemental funds to pay
for extras not covered by public benefits. These areas of the law are
a complex mix of state and federal laws and regulations. Seeking the advice
of a qualified attorney will help you ensure that disability planning accomplishes
its intended result.
Finding a lawyer
Many decisions that individuals or families must make related to end of
life are legal issues. In addition to providing legal advice about existing laws
and options in making these decisions, an attorney will assist in making
sure that necessary documents are correctly prepared. In some cases, there
may be legal proceedings requiring representation.
For any legal
issue related to end of life care, find an attorney who is experienced
in the particular area of concern. Seeking recommendations from family,
friends, and colleagues who have had similar legal issues is one possible
option. The Massachusetts and Boston Bar Associations both have lawyer
referral services that offer advice in how to seek the right lawyer for
your needs and can assist in identifying possible lawyers for you to contact.
If you know
any attorneys, ask them for a referral to a specialist. An attorney is
in a good position to know other qualified attorneys who handle such issues.
Such persons are often the best and safest sources of referrals.
Ask Questions
First
Ask a lot of questions before selecting an attorney. Start during the
initial phone call. It is not unusual to speak only to a secretary, receptionist,
or office manager during an initial call or before actually meeting with
the attorney. If so, ask this person your questions.
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How
long has the attorney been in practice? |
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Does
the attorney's practice emphasize a particular area of law? |
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How
long has the attorney been in this field? |
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What
percentage of the attorney's practice is devoted to this area of the law? |
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Is
there a fee for the first consultation and, if so, how much is it? |
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Given
the nature of your problem, what information should you bring with
you to the initial consultation? |
The answers
will assist you in determining whether that particular
attorney has the qualifications important to you for a successful attorney/client
relationship. If you have a specific legal issue that requires immediate
attention, be sure to inform the office of this during the initial telephone
conversation.
Once You Have Found an Attorney
When you have found an appropriate attorney, make an appointment to see
him or her. During the initial consultation, you will be asked to give
the attorney an overview of the reason you are seeking assistance, so
be sure to organize and bring all the information pertinent to your situation.
| After
you have explained your situation, ask: |
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What
will it take to resolve it? |
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Are
there any alternative courses of action? |
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What
are the advantages and disadvantages of each possibility? |
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How
many attorneys are in the office? |
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Who
will handle your case? |
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Has
that attorney handled matters of this kind in the past? |
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Is
that attorney a member of the local bar association, its health advocacy
committee, or its trust and estates committee? |
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Is
that attorney a member of the National Academy of Elder Law Attorneys? |
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How
are fees computed? |
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What
is the estimated time and cost to resolve your problem? |
Discussing Fees
There are many different ways of charging fees. Be aware of how your attorney
charges and how often he or she bills. Some attorneys bill weekly, some
bill monthly, and some bill upon completion of work. Ask about these matters
at the initial conference so there will be no surprises. If you don't
understand, ask again. If you need clarification, say so. It is very important
that you feel comfortable in this area.
Some attorneys
charge by the hour, with different hourly rates for work performed by attorneys,
paralegals, and secretaries. If this is the case, find out what the rates
are. Other attorneys charge a flat fee for all or part of the services.
This is not unusual, for example, if you are having documents prepared.
Your attorney might use a combination of these billing methods.
In addition
to fees, most attorneys will charge you for out-of-pocket expenses. These
expenses typically include charges for copies, postage, messenger fees,
court fees, deposition fees, long distance telephone calls, and other such
costs. Find out if there will be any other incidental costs.
The attorney
may ask for a retainer. This is money paid before the attorney starts
working on your case that is usually placed in a trust account. When the
attorney bills you, he or she is paid out of that account.
Expenses may also be paid directly from the trust account. The size of
the retainer may range from a small percentage of the estimated cost to
the full amount.
Get It in Writing
Once you decide to hire the attorney, ask that your arrangement be put
in writing. This could be done in a letter or a formal contract. It should
spell out what services the attorney will perform for you and what the
fee and expense arrangement will be. However, even if your agreement remains
oral and is not put into writing, you have made a contract and are responsible
for all charges for work done by the attorney and his or her staff.
Make It a Good Experience
A positive and open relationship between an attorney and a client benefits
everyone. Communication is the key to achieving this. If your concerns
are given short shrift, you don't like the answers to the questions,
you don't like the attorney's reaction to being asked all those questions,
or you simply do not feel relaxed with this particular person, do not
hire that person. Only if you are satisfied with the attorney you have
hired from the very start will you trust him or her to do the best job
for you. Only if you have established a relationship of open communication
will you be able to resolve any difficulties that may arise between the
two of you. If you take the time to make sure that you are happy at the
beginning, you can make this a productive experience for both you and
the attorney. You will thank yourself, and your attorney will thank you.
In addition
to private attorneys, publicly funded legal aid offices, such as Greater
Boston Legal Services, can help low-income individuals with free legal
assistance in some types of situations. Contact the Legal Advocacy and
Resource Center for other legal aid offices in Massachusetts. The Massachusetts
Bar Association may also assist you in identifying legal resources that
are lower cost if you meet certain financial guidelines.
| For
other information and resources: |
| General
information on end of life legal matters |
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website: www.uslivingwillregistry.com |
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| Finding
a lawyer |
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Massachusetts
Bar Association
20 West Street
Boston, MA 02111-1218
Phone: 617-338-0500
Lawyer referral service: 617-654-0400 or (866) MASSLRS
website: www.masslawhelp.com |
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Boston
Bar Association
16 Beacon Street
Boston, MA 02108
Phone: 617-742-0625
email: lrs@bostonbar.org
website: www.bostonbar.org/lrs/about.htm |
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Greater
Boston Legal Services
197 Friend Street
Boston, MA 02114
Phone : 800-323-3205 (toll-free) or 617-371-1234
TDD: 617-371-1228
Fax: 617-371-1222
Or:
432 Columbia Street
Cambridge, MA 02141
Phone: 617-603-2700
TDD: 617-494-1757
Fax: 617-494-8222 |
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Legal
Advocacy and Resource Center
197 Friend Street
Boston, MA 02114
Phone: 617-603-1700 or 800-342-5297 (eastern Mass. only)
website: www.neighborhoodlaw.org |
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National
Academy of Elder Law Attorneys (NAELA)
1604 N. Country Club Road
Tucson, AZ 85716
Phone: 520-881-4005
website: www.naela.org |
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Massachusetts Trial Court Libraries
Seventeen (17) public law libraries located across Massachusetts, dedicated to serving legal professionals and the public.
website: www.lawlib.state.ma.us |
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Massachusetts Chapter of the National Academy of Elder Law Attorneys, Inc.
PO Box 67137
Chestnut Hill, MA , 02467
Phone: 617-566-5640
Fax: 617-734-9758
email:info@manaela.org
website: www.manaela.org |
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Barnstable County Bar Association Lawyer Referral Service
PO Box 718
Barnstable, MA 02630
Phone: 508-362-2121 |
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Berkshire County Bar Association Lawyer Referral Service
Use Mass Bar Association Lawyer Referral Service |
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Bristol County Bar Association Lawyer Referral Service
440 County Street
New Bedford, MA 02740
Phone: 800-647-5151 or 508-990-1303 |
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Essex County Bar Association Lawyer Referral Service
36 Federal Street
Salem, MA 01971
Phone: 800-228-2574 or 978-741-7888 |
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Franklin County Bar Association Lawyer Referral Service
20 Federal Street, Suite 4
Greenfield, MA 01301
Phone: 413-773-9839 |
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Hampden County Bar Association Lawyer Referral Service
50 State Street
Springfield, MA 01103
Phone: 413-732-4648 |
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Hampshire County Bar Association Lawyer Referral Service
15 Gothic Street, Suite 10
Northampton, MA 01060
Phone: 413-586-8729 |
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Middlesex County Bar Association Lawyer Referral Service
657 Cambridge Street
Cambridge, MA 02141
Phone: 617-494-4150 |
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Norfolk County Bar Association Lawyer Referral Service
15 Cottage Street, Suite 206
Quincy, MA 02169
Phone: 617-471-9693 |
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Plymouth County Bar Association Lawyer Referral Service
47 West Elm Street, Suite 304
Brockton, MA 02301
Phone: 508-584-6600 |
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Worcester
County Bar Association Lawyer Referral Service
19
Norwich Street
Worcester,
MA 01608
Phone:
800-622-9700 or 508-752-1311
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