An “ESTATE PLAN”….sounds complicated and a bit grand. I can’t possibly have an “estate.” Surprise, we all have an estate. If we own our own home, a car, a bank account, a retirement account, a stamp collection, a piece of art, a pet, children, etc., this makes up our estate.
What an estate plan allows you to do is provide instructions to individuals designated by YOU as to what happens to your health, financial, legal, and legacy decisions. An estate plan takes into account an emergency now that may leave you unable to make decisions for yourself and what happens after you’ve gone.
A basic estate plan may contain the following documents:
A Health Care Proxy;
A HIPAA Release;
A Durable Power of Attorney;
A Homestead Declaration; and
A Revocable Trust;
Health Care Documents:
Let’s take a general look at the Health Care documents first:
- Health Care Proxy
- HIPAA Release
Health Care Proxy:
A Health Care Proxy is a document that allows you (the Principal) to designate someone else (the Agent) to make healthcare decisions for you if you become incapacitated.
In this case “incapacitated” is a condition that requires proof under current Massachusetts laws. This document only “turns on” when you are medically certified as incapacitated and it “turns off” if you subsequently regain your capacity. Additionally, these documents may be revoked by you at any time. You can also name an alternate Health Care Agent (only one Agent may serve at any time).
You are also allowed to disagree with decisions made by your Health Care Agent. If you do object, your wishes prevail (unless a court deems otherwise).
There are certain limitations on who can act as Health Care Agent. In Massachusetts the following persons may not act as a Health Care Agent:
- generally, no person who is an operator, administrator or employee of a facility (ex. nursing home, hospital, etc.) ifthe Principal is a patient or resident of such facility or has applied for admission to such facility at the time the document is executed.
Lastly, a Health Care Proxy ceases to be valid at the date of your death. At that time your named Personal Representative (formerly “Executor”) becomes the designated fiduciary for your estate.
Unlike a Health Care Proxy there is no decision making associated with this document. Additionally you can name as many people as you want on a HIPAA Release. What this document does is grant access to these individuals to receive your medical information, even if you are still competent.
For instance, naming all your children on a HIPAA Release may help mitigate any friction that arises if you name one of your children as your Health Care Agent and not others. This allows all the named individuals access to the relevant information and may foster a more open and supportive process.
NOTE: If you spend a significant amount of time in another state (ex. Florida, New Hampshire, Vermont, Maine, etc.) it may make sense to have a set of these documents drafted under the laws of that state. This is especially important for same-sex couples.
 This blog entry provides a basic outline as to the purpose and scope of these documents. It is not to be taken as legal advice.