If you are the loved one, caregiver, or family member of a Millbury resident that may be unable to manage his or her own financial affairs, you may wish to consider petitioning for a conservatorship. Like many other states, Massachusetts allows for two different types of protective proceedings for an adult in need of protection. A guardianship appoints someone to take care of the personal affairs of the incapacitated person who needs protecting. A conservatorship appoints someone to take care of the financial affairs of the incapacitated person.

As a conservator, you will have the legal authority to manage and control the finances, property, and money of the ward. You will not be able to make decisions such as where the ward lives or what doctor he or she uses. Those are under the control of a guardian. You can petition to be both a guardian and a conservator.

Before a court will consider appointing you as conservator, the court must determine that the ward needs a conservator. Under Massachusetts law, the court may appoint a conservator for someone who is “(1) disabled and who requires a substitute financial decision maker either (2) to prevent the property from being wasted or dissipated or (3) so that the financial support, care and welfare of the person is effectuated and managed.”

In order to seek conservatorship, you must petition the Massachusetts Probate and Family Court. The process can be lengthy and complicated. If you feel that a loved one needs a conservator, consult with your Millbury elder law attorney.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

If you are in the process of creating an estate plan, or already have one in place, you may also be considering the need for an incapacity plan. Incapacity can strike at any time and for any number of reasons, making the need for an incapacity plan equally as important as an estate plan. Although you do not need to make an entirely separate incapacity plan in most situations, you do need to discuss your desire to incorporate incapacity planning tools into your estate plan with your estate planning attorney.

The principal goal of an incapacity plan is to avoid a scenario where a family member or loved one is forced to petition a court in order to ascertain control over your finances or make healthcare decision on your behalf in the event of your incapacity. Absent pre-planning, that is precisely what is likely to happen.

Many estate planning tools can also be used as incapacity planning tools. Converting titles to real property or ownership of financial accounts, for instance, can serve the dual purpose of giving your loved one immediate access to the property or account upon your death and allowing them access in the event of your incapacity. A power of attorney can also be used in the event of your incapacity if it is a durable power of attorney. Trusts are also commonly used when creating an estate plan. A trust can often function as an incapacity planning tool as well by simply adding your incapacity as a triggering event which shifts control of the trust assets to the trustee.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

There are a number of issues when it comes to estate planning beyond creating a will and the distribution of property. One of the many facets of estate planning is to plan for incapacity. This is when you are unable to make decisions on your own behalf due to medical reasons. What do you do when you are unable to make these decisions? What happens with regard to our final wishes if we become incapacitated?

It is widely assumed family members can step right in and speak on our behalf when we are no longer able to do so. This is incorrect unless you have done some incapacity planning first. Without a proper plan in place, not only will hundreds of hours be wasted on arguments or in court, but thousands of dollars will also. In addition, you will be saving your family members a lot of heartache. It does not take much time to put together this plan, and it is well worth the effort.

There are many goals involved with incapacity planning, the most important of which is ensuring family stays in control of your final wishes and the entire matter does not end up in court. The last thing anyone wants in these situations is a guardian/conservator appointed by court on your behalf. The types of control you want to keep in your family are control over your healthcare and control over your assets and properties. You do not want to lose power over any of these things, particularly when you are incapacitated.

For individuals who are parents of minor children, your incapacity planning should also include guardianship for your children. That way, none of your family members need to go through the difficult and expensive process of fighting in court to care for your children. If the battles are not won, the children will have to be placed with a court appointed guardian. That is not the best option, which is why it is highly advisable to include this step within your plan.

There are a number of documents your estate planning lawyer will create for you during your incapacity planning:

• Nomination of Guardian
• Durable power of attorney
• Medical power of attorney
• HIPAA release
• Advanced Medical Directive

In addition to these documents, you are going to want to plan for long term care and nursing home expenses. These funds can be placed into a trust, which can be drawn up the same time you write your will. Creating a trust like this ensures you are covered for expenses your insurance and Medicare does not pay for.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Many of us approach the idea of aging with the assumption that our children will be there to provide support and care in case our health declines. But what if you don’t have children – or it has become clear that you might not be able to rely on your children as you age?

Nearly twenty percent of baby boomers are childless, and having children does not necessarily guarantee that they’ll be there to help with healthcare concerns, household tasks, decision making, and all the other areas in which you might need assistance as you age.

If you won’t have children to lean on and to handle care giving responsibilities as you age, it’s essential that you surround yourself, as much as possible, with friends and loved ones you can rely on. And it’s a good idea to include some trustworthy friends from younger generations. When you rely on a “chosen family” such as this to help you meet your needs as you age,  a well-thought-out incapacity plan is all the more important. At the very least, you’ll need:

• A Durable Power of Attorney for Finances that allows a trusted agent, chosen by you, to make financial decisions on your behalf in case you can’t do so yourself.
• A Healthcare Proxy that allows you to choose someone you can rely on to direct your medical care if you’re incapacitated.
• A HIPAA Release that allows the person you put in charge of your health care to access your medical records and communicate with your doctors.
• A Living Will with which you communicate your preferences when it comes to end-of-life care.

In addition to these documents, you may want to consider a living trust. And you’ll also want to look into your options for long-term care (and for paying for care), so that you and those close to you know your preferences if the need arises for such care.

A qualified elder law attorney can be a valuable resource when it comes to preparing for the needs you’re likely to have as you age.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

An incapacity plan accomplishes a lot of things.

• With a living trust and/or a durable power of attorney, you can appoint someone you trust to be in charge of your finances in case you become disabled.
• With a Medical Directive you can choose which courses of treatment you want and refuse those you do not want.
• With a healthcare proxy, you can name a reliable friend or family member to make medical decisions on your behalf if you’re not in a position to make those decisions yourself.

However, unless your incapacity plan includes certain specific language, your agent or trustee won’t be able to perform one important function – engaging in Medicaid planning on your behalf. This language identifies “Medicaid triggers,” certain events let your agent or trustee shift assets out of your name and into forms of ownership that aren’t counted for Medicaid qualification purposes.

Without an incapacity plan that anticipates the need for Medicaid planning, you could be forced to dissipate your property to pay for nursing home care instead of qualifying for Medicaid coverage. The result is that your life savings could go to a nursing home rather than being used to provide for your spouse’s financial independence or being preserved for your children or grandchildren.

Make sure you have an incapacity plan that anticipates all your needs: meet with an estate planning attorney sooner rather than later.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

In life, we never really know what can happen at any given moment. We could become incapacitated or disabled at any time. Although we would all love to think that we will be young and live forever, it just isn’t practical to believe that. That is one of the reasons why it makes so much sense to have a durable power of attorney so that you can protect your well-being in the event that you do become unable to care for yourself.

A durable power of attorney is a legal document that will allow you to choose another person that you trust to take care of you if you become incapacitated in some way. This person is sometimes referred to as an attorney-in-fact. They will act on your behalf when you cannot handle things yourself. Sometimes, you may choose to create an advance directive which mixes a living will with a durable power of attorney.

This type of document could go into effect after someone is physically injured or has some kind of mental problem. A durable power of attorney will continue throughout a person’s incapacitation all the way up until their death. The power of attorney will be able to make decisions on behalf of the grantor during that time.

Some people choose to sign a durable power of attorney for property. This document allows the grantor to give authority to the attorney-in-fact so that they can make financial and legal decisions. The power of attorney can be anyone from a trusted friend to a family member. They can have different levels of power including the power to purchase property, to invest, to make plans for government benefits and even to give gifts on your behalf.

It is very important to think carefully before choosing your durable power of attorney. They will have considerable power over your life, finances and other decisions if you are incapacitated. Choose someone trustworthy who will have your best interests at heart.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

When you create a medical power of attorney (MPA), you, the “principal” are appointing someone to act as your “agent” for all of your medical decisions in the event that you are unable to do so.  The individual has to be an adult and will undoubtedly be someone that you trust.

The purpose of the MPA is to ensure that your wishes are carried out even when you are not able to make them yourself.  The MPA passes that decision-making ability on to someone that you trust, literally, with your life.

Unfortunately, a MPA is not fool-proof.  There are some instances where it;s validity can be questioned.  For instance, someone issues a MPA and grants the agent immediate right to execute power.  If the principal becomes faced with a crisis, but is not incapacitated, the agent can still execute their decision-making power.  In order to avoid this, the principal needs to make the MPA “limited”.

Even though an agent has been designated, a third party still has the ability to ignore the MPA.  A medical provider who disagrees with the intention of the agent can choose to ignore the MPA completely.  This could drag out a painful situation while the matter is being resolved in court.

In order to protect yourself, you should make sure that your MPA is signed in the presence of at least two witnesses and that it is also notarized by a separate individual.

There are also situations where a MPA has been issued and, later on, the principal wishes to revoke it. Family members could try to contest that the principal is acting irrationally and isn’t in the right mental state to be making these decisions.  This could create a parting of opinions as to whether or not the principal has the mental capacity to revoke the MPA in the first place.

In order to properly revoke a MPA, you should notify the attorney in writing of your intention to revoke it.  Next, notify the physician in writing of the same intention.  Finally, you want to make the revocation a part of the principal’s medical records so that there is no question of your decision.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

When a loved one is diagnosed with Alzheimer’s disease, your family’s life begins to change. Because of the progressive nature of the disease, a person with Alzhiemer’s is in a unique position when it comes to estate planning. Usually, when the initial diagnosis comes in, the patient is still lucid and functioning relatively well; but, the diagnosis itself means that tough times lie ahead. The moment to plan for these tough times is as soon as possible after an Alzheimer’s diagnosis.

This is particularly true if your loved one has no estate plan, but even if there’s an estate plan in place, it needs to be reviewed and likely needs to be updated. Not only does a person with Alzheimer’s need an effective will or revocable living trust, there’s also a need for in-depth incapacity planning.

For instance, who should be in charge of financial matters when your loved one is no longer able to independently manage bank accounts, bills, and property? It’s important to have a Durable Power of Attorney for Finances in place, and it’s also a good idea to make sure the  Power of Attorney allows for Medicaid planning and gives your loved one’s agent the authority to access retirement accounts – these things are generally not included in a basic Power of Attorney.

Then there’s the question of medical care. What kinds of medical care does your loved one want, and what types of care does he or she prefer to avoid? This needs to be spelled out by way of a Living Will, plus a Healthcare Surrogate should be named to interact with doctors and make healthcare decisions for your loved one.

And what about long-term care? Now is the time to explore all the options, from in-home care to adult day care to assisted living facilities and nursing homes. Choosing facilities ahead of time, and putting a plan in place to pay for long-term care, can go a long way toward providing everyone in your family with peace of mind.

If a loved one has recently received an Alzheimer’s diagnosis, now is the time to encourage him or her to meet with an estate planning attorney and make sure all the issues are addressed.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

In general, the preferences you express in your Living Will or other advance healthcare directive must be honored. However, if the directions contained in your Living Will violate the conscience of your doctor or run contrary to the policies of the healthcare institution where you’re a patient, two things must happen.

First, your doctor or healthcare institution must inform you that your wishes can’t be honored. Second, you must be transferred to a healthcare provider who is willing to carry out your instructions.

If you’re in the end stages of a terminal illness, or you’ve been critically injured, this is the last situation you and your family want to be subjected to.  How can you avoid it, and help to ensure that your wishes will be honored?

Talk to your doctor or other healthcare provider, and check with your hospital or other healthcare facility. Check to see whether or not your advance directive runs contrary to their policies.  You’ll likely find out that there’s no problem honoring your preferences, and you can breathe a sigh of relief. However, if there’s a conflict, consider this your opportunity to find new healthcare providers whose views are more in line with your own.

In addition to discussing your healthcare wishes with your doctor or medical institution, you’ll likely want to have a conversation with your family members, and particularly the agent you’ve chosen to make healthcare decisions on your behalf. Having a discussion about your beliefs and preferences can go a long way toward eliminating conflict and helping your agent make the appropriate decisions on your behalf.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.

Most people are familiar with the fact that if you pass away leaving a Will, that document is recorded with the probate court at the start of the probate process. This leaves many people to wonder where and when other estate planning documents, like their Advance Directives, need to be registered or filed.

In reality, Advance Directives do not need to be registered or filed anywhere in order to be valid and recognized. Instead, assuming your Advance Directive was executed in compliance with state law, the agent you’ve designated will generally only need to present the document to the appropriate institution in order to take action on your behalf.

For instance:

• A Healthcare Proxy is the document you use to appoint someone you trust to make medical decisions on your behalf, in the event of your incapacity. If you’re in the hospital and the person you’ve appointed needs to step in and act on your behalf,  he or she will need to show your valid Healthcare Proxy to your health care provider.
• A Medical Directive  is a document with which you designate your wishes when it comes to end-of-life medical treatment. When the time comes for your Medical Directive along with your Healthcare Proxy to be honored, your loved ones will need to provide the document  to the appropriate medical personnel to demonstrate what medical interventions you do and don’t want.
• A Durable Power of Attorney for Finances lets you appoint an agent to take certain financial and legal actions on your behalf. If your agent needs to access your bank account, for instance, he or she will take your Power of Attorney to the bank in order to gain access. If your agent sells real estate on your behalf, the Power of Attorney will be recorded in the real estate records along with the deed, but recording the Power of Attorney in this way is not what makes the document valid. Instead, it shows that your agent was authorized to sign the deed on your behalf.

The Law Offices of James A. Miller is a member of the American Academy of Estate Planning Attorneys.