A health care proxy is a form that appoints someone to make health care decisions on your behalf if you become unable. This form can be obtained from your doctor or hospital, or at this link, called: advanced directives. This document can be filled out at any time (and everyone over 18 should have one) and is only activated when your doctor believe you are unable to make health care decisions for you.

A living will is a document that provides your health care agent with instructions about the type of care you want. The Five Wishes Living Will is one example. Some people prefer to write their own, or they might use one provided by their church or religious institution. This document can be filled out at any time. They are not legally binding documents, but are rather intended to provide guidance to your agent.

A Comfort Care/Do Not Resuscitate directs ambulance services and EMTs to not provide resuscitation services (CPR, ventilation, chest compressions, defibrillations, etc) to you.  Without this form, they must resuscitate, even if a health care agent is telling them not to, or your living will says different. A DNR in a hospital setting directs the hospital stuff to refrain from resuscitating you. This form is filled out by your doctor based on your wishes when you are seriously ill or medically frail.

The Medical Order for Life Sustaining Treatment  (MOLST) is also filled out by your doctor, based on your wishes. Unlike a DNR which is used to refuse medical care, the MOLST can be used to refuse or request medical care.  The MOLST form applies to more treatments than the DNR such as CPR, ventilation, dialysis, intubation, feeding tube, and artificial hydration.  For each of the treatments you can choose no treatment, use the treatment, use it for short term/trial basis, or undecided. This form would be filled out when you were seriously ill.

These forms are all voluntary. No one can make you sign one or tell you what to put on it. You should talk to your doctor about your health care options and make sure that you name people you can trust to help you if you are unable to speak for yourself.

It was a good thing she called, because this was a scam and a fake bill that was made to look like it was from an official agency.

A quick search online showed that other states were warning folks of these letters that make it sound like you need to buy a copy of the deed to your house.

This is not the case. Your deed is recorded at the Registry of Deeds or Land Court, and in the case of the Registry you are mailed the original one after it is recorded. You can always request  a copy of your deed directly from the Registry, for just a few dollars. Any company charging you $20+ dollars should be questioned, especially if you did not reach out to this company but received unsolicited mail from them.

If you have doubts about mail you receive asking you for money for something you didn’t request, think twice and ask someone else what they think. You can even bring it to the police station if you are concerned or call the Better Business Bureau.

The good news is, the state has a plan for your children and your money if something happens to you and you haven’t named guardians. The bad news is, the state has a plan for your children and your money if something happens to you and you haven’t named guardians.

Sometimes when struggling with a decision, it can be helpful to think about what will happen if you simply don’t decide (which in itself is a decision) and one night you and your spouse don’t make it home.

1. Child protective services would be called if neither parent was available, since no one else has the legal authority to care for the children. They would be taken to a foster home until more permanent arrangements could be made and a guardian could be appointed. (Is there anyone you could choose who would be a better option than foster care?)
2. The family member who lives the closest would likely arrive to attempt to have guardianship given to them. This could take days or weeks, depending on whether anyone else was attempting to obtain guardianship as well. (Is the person who would seek guardianship the same person you would want to have guardianship? If two or more people were seeking guardianship, who would look best to the Court? Is this the person you would want named?)

3. Alternately, a family member who wants to get their hands on the funds that have been left to the children may seek guardianship. (Is this the person you would have chosen?)

4. The same person who seeks guardianship of the children will mostly like be put in charge of managing all of the money left behind, unless someone else steps up to fight this. (Is this the person you want handling all of the money for your children?)

5. When your children turn 18, they will be entitled to receive all the funds left in your estate, outright. (Think back to when you were 18, then think about how much life insurance you’ve purchased, the value of your retirement accounts, the value of your house, then think back to when you were 18…)

“But we really can’t decide! We just fight about it. He wants his mother and I want my best friend.”

In this case it can be helpful to each make a case for why you are choosing a particular person. It may help you work through and reach an agreement.  The fact that the person shares your parenting values, makes your child feel comfortable and is at an age where they can handle child raising for the next X years are good reasons to choose someone. Guilt and not wanting to have to tell the person you didn’t choose them are not good reasons. See if you can reach a compromise by naming back up guardians as well, or leaving instructions for the guardian and trustee that funds should be used to allow travel and visits with a family member who might not be the right guardian, but is close to the child. If you still can’t decide, read the list above again.

You may want to choose a professional trustee whose dedicated job is serving as trustee, rather than relying on a family member to handle the financial matters in addition to their own responsibilities. In addition, a professional trustee will generally have a team helping to run things so that one person isn’t solely responsible. A professional trustee will also have experience with the income tax requirements and other administrative tasks associated with being a trustee. Of course, they will also be paid for their work out of the trust funds and may not know your family member personally or to the extent others do.

On the other hand, having a family member as trustee can be helpful as they know the beneficiary personally and have a personal connection with them. While they may not charge money for their services, they will still likely need to hire professionals to assist them in their role (like accountants, attorneys, or financial advisers) and those people will need to be paid out of the trust.

What some people choose to do is appoint a professional to serve as trustee, and then name some family members as an advisory committee for the trust, so that all the needs of the beneficiary can be met by those people who are most appropriate for each job.

If this decision is holding up your planning, make a list of possible trustees and then talk with your attorney to help narrow down your choices.

Here are some situations that can cause delays in the probate and distribution of an estate:

•  Creditors in Massachusetts have a year to come forward and make a claim against the estate. The personal representative (the new name for the executor) should therefore hold back some of the funds from the estate until this time frame has passed to make sure there are enough funds in the estate to pay debts.
• If there are people named in the will who cannot be located, or who have passed away or become incapacitated, this can cause delays while they are located or their estate have been opened or had guardians appointed.
• Sometimes beneficiaries don’t know what property was owned by the decedent and time is spent looking for stock certificates or trying to locate real estate in another state or country.
• Sometimes heirs can’t decide what to do with a piece of real estate and time is spent trying to come to an agreement or settle the matter in court.
• When there are disagreements over who should serve as personal representative of the estate, things come to a stand-still until that is resolved.
• If there is a disagreement over the validity of a Will, that issue must be settled before any kind of distribution can be made out of the estate.
• If there is a dispute about how title to real estate is held, that can tie up the settlement of the estate.
• If a person has died without a will and there is difficult in determining and locating heirs that will cause delays in the distribution of the estate.

Some ways to prevent delays in the distribution of your estate:

• Make sure you have a clear record of your family members, their relationship to you, and current addresses and phone numbers for them. This becomes more important if you don’t have children or a spouse, but have siblings, cousins or more removed relatives who may need to receive notice of the probate of your estate before the process can proceed.
• Have an updated list of all your assets, how they are held and where they are located.
• Talk to your South Shore estate planning attorney about alternatives to the probate process.
• Talk to your family members about your plans for distributing your estate to minimize disagreements later on.
• Make sure that you have clear title to your real estate and that you know the location of stock certificates or savings bonds that you own.

I tell my clients that if they don’t take the steps they need to make sure their goals will be carried out, that I may find myself sitting in my office with their children or other family members trying to explain that what they thought their loved ones wanted didn’t actually happen.

“I know my mom wanted all of us to split this life insurance policy” is of little use when she never got around to changing the beneficiary and one child has inherited the entire thing. And doesn’t feel like (or legally can’t) share it.

“I know my father meant for his new wife to share everything with me” but he never took the steps to make sure that would happe.

“I know my sister wanted me to be guardian of her children, so what are they with her husband’s family?”

These are never easy conversations to have and they just increase the pain people are already feeling during a crisis. You aren’t going to be around to explain what you meant to say, so make sure it is clear while you still can.

As I dug out my house and car, and had power restored on Sunday night, I thought about how well my blizzard plan had worked.  Here’s what I learned:

1. Know where to find your stuff before the emergency.  For blizzard planning this means have your flashlights and candles and winter clothes out and in a central location while the lights are still on. I came home Saturday night to a dark house and realized I wasn’t sure where I’d left my headlamp.  I spent a few frantic minutes fumbling around trying to remember where I’d left it. Sunday morning before I left the house, I made sure all lighting supplies were right by the door.

For legal planning, this means having a list of your important accounts, advisors and medical information compiled while you are healthy and competent. This way your family won’t be stumbling around in the dark when they need to help you in an emergency.

2. Put a plan in place, even if you can’t imagine why you’d need it.  Emergency officials often say during a storm that you should fill your bathtub with water. I could never imagine a case in which I would need a tub filled with water during a storm, so I never usually do it.  However, something motivated me to fill my tub on Friday night, shortly before we lost power.  Saturday morning when I checked Facebook from my phone, I saw that my town’s water department generator had failed and they were asking folks to cut back on water use until the part could be flown in on Tuesday.  Ah ha, so this is why you should fill your tub. I could then use this water to flush the toilet and I could use my bottled water for cooking and dishes until the water restriction was lifted.

(Then my cat jumped in the tub and had the scare of her life when she realized it was filled with quite cold water!)

When I’m helping my clients put their plans into place they sometimes say “But that is such a remote possibility, I can’t imagine things getting to that point,” or “I’m never going to end up like that so it doesn’t matter.”  But you know what, remotely possible things do happen, and you never know what the future holds. It’s worth it to take the time to make some plans or fill the tub (and then shut the bathroom door to keep the cat out.)

3. Your plan isn’t just for you, it’s to make life easier for other people, too.  I prepare for a hurricane or blizzard mostly so that I will make it through as comfortably as can be. But, I also do it so that those who can’t or don’t plan can use the town resources, and I don’t have to. I had food (and instant coffee!) to get me through a week or so if needed, which meant that I didn’t need eat food at the warming center at the high school and someone else could. I had an emergency Mylar blanket and my house never got too cold, which meant that I left space in a hotel room or storm shelter somewhere for a family with an infant or elderly parent. I was self-sufficient in my home so that police and fire could be elsewhere.

Likewise, if you have a proper plan in place for your incapacity you are making life easier for your family. They can quickly go into action to assist you and not waste time trying to figure out what you own and how they can access it to support your care or pay your bills. If you have a durable power of attorney and health care documents in place, your family doesn’t need to seek the assistance of the court and those resources can be used by people who have no other options.  And by sharing your medical wishes ahead of time, you help relieve the burden from those who need to communicate your wishes when you are no longer able.

4. Plan For Contingencies.  Most of my friends and I had plans in place for the blizzard. But some folks found themselves needing to implement their Plan B.  They had planned for the power to go out and had a generator on standby. But, they still dug out their driveway in case they needed to leave for some reason. This turned out to be a good idea because when the generator failed, they could drive to a family member’s home that still had power.  I planned on weathering the storm at home (and did), but I had a bag packed and made sure I had the cat’s rabies & vaccination information handy in case we needed to evacuate and I had to board her.

I talk about contingency plans a lot with my clients, too. Most have thought about whom they want to help them in an emergency. But we go beyond that and talk about who would help them if their primary choice wasn’t available, and who would inherit their belongings if their primary family members weren’t around.  This way, my clients get to make the decisions in a calm fashion instead of having their family members or the Court trying to determine the best course of action to take.

Here’s to being prepared for all sorts of situations and weathering storms well!

(Photo: Author’s own. Cohasset.)

In some states, the executor receives a set percentage of the estate. That is not the case in Massachusetts. In Massachusetts an executor, and for these purposes we mean an executor who is not an attorney, is entitled to “reasonable compensation.” What does this mean?
First, it means that any executor wishing to be paid needs to keep detailed, contemporaneous records of the work they did. They cannot just cut themselves a check at the end of the process. They need to have records showing the dates, amount of time spent, and what the time was spent on. For instance “April 2, 2011 – Visit to bank to retrieve records, meeting with accountant to review statements for upcoming taxes – 4 hours” is a lot more acceptable than “April 2, 2011 – 4 hours.”

The records have to be contemporaneous – meaning they have to be kept at the time the services are rendered. And the services have to be “reasonably necessary” which means an executor probably couldn’t get paid for time spent visiting the grave of the deceased, as this is not a duty of the executor.

And the fees must be “reasonable.” This means that they must reflect what a reasonable person would charge for these services.  So charging $100/hour to drive by the decedent’s house to check on it would probably not be considered reasonable.  $25/hour for this task probably would be considered reasonable.  Likewise, charging $40/hour for bookkeeping may be seen as reasonable if this is the going rate for bookkeeping in the area.

The beneficiaries of the estate or the Court can object to the proposed fees and lower them if they deem them unreasonable.  For this reason, the more clear your records can be, the better.

Keep in mind that income earned as an executor is taxable.  And that a person can decline to be compensated for this work if they wish.

Then John passes away. What happens to his stuff?

• The property that he holds jointly with Carrie – the joint account and the primary residence – pass to Carrie.
• The accounts that list Carrie as the beneficiary go to Carrie.
• The home he owns in his own name and the bank account in his sole name totaling $600,000? The law says that Carrie is entitled to the first $200,000 of that and 3/4 of the balance ($300,000) and then John’s parents are entitled to the other quarter ($100,000.)

Not only could this deprive Carrie of money that she needs to live on, but if John’s parents have done their own estate plan to minimize taxes or are in a nursing home on MassHealth this unintentional inheritance could interfere with their plans.

Take some time this weekend to review how your property is held and see if it matches your goals and the goals of those who might inadvertently inherit from you.

Massachusetts law says that if someone dies without a will and they have a spouse and children, and all of those children are also children of the spouse (and the spouse has no other children), then the spouse inherits everything. For example, if Brad Pitt passed away without a will, all of his children are also children of Angelina Jolie, and she has no other children so she would inherit everything.  The law figures that the spouse will use the money to care for the children and that the children don’t need any additional protection.

The law then says “If any of the decedent’s descendants is not also a
descendant of the spouse, or if any of the spouse’s descendants is not also a descendant of the decedent, the spouse receives the first $100,000 plus one-half of the balance of the estate, and the decedent’s descendants receive the one-half of the balance.”

Which may have you saying “huh?”

What this means is that if there are step-children, the law wants to provide an additional layer of protection for them.  So, if Nicole Kidman were to pass away as a resident of Massachusetts, she has descendents who are not descendents of her spouse (she has 2 children with her first husband, Tom Cruise and 2 children with Keith Urban.) Therefore, Keith Urban would inherit the first $100,000.00 plus half of the estate, and all 4 of Nicole’s children would share equally in the second half of the estate.  The law wants to make sure that Keith doesn’t inherit all the money and then cut out Nicole’s other children.

This provision, however, only applies to property that is passing through the probate estate. So, if spouses hold all of their property jointly you could end up with a scenario where a “decedents  descendent’s” are mistakenly disinherited.  If Nicole and Keith held all of their property jointly, and Nicole passed away, Keith would own all of the property.  He could then write a will that says everything goes to his children, Sunday and Faith, and Nicole’s other 2 children would inherit nothing

This situation can be especially unfortunate when the children are younger and still in need of support.

By taking the time to think about your own family situation and needs, and then meeting with an attorney to memorialize those wishes (and make sure your assets are aligned properly) you can avoid ending up on the pages of TMZ or at least keep your descendents out of probate court.