Thinking about undertaking a comprehensive estate plan can seem overwhelming, but there is actually a tiny first step you can take that will give you a tremendous return for a little effort. There are two simple documents that if you don’t take care of them now, it will make handling your affairs much more complicated should you become incapacitated.

What are they? Your Health Care Proxy and your Durable Power of Attorney. You may think you don’t need them yet, or that there will still be time to prepare those documents should you become ill or are in an accident, but making that assumption is a big risk. Yes, estate planning is about planning for the unknowns in the future… But the best estate planning is about removing risks from the unknowable. Preparing these basic documents does exactly that: It removes risk from your unknowable future.

Without a Health Care Proxy (“HCP”) a Guardian may need to be appointed by the Court.  Not only do you lose the ability to choose who to act on your behalf, but this can be a lengthy, stressful, process. A Guardianship proceeding may be necessary when an adult becomes incapacitated and is no longer able to communicate or make informed decisions regarding their health, safety, and self-care. Unlike other states, your spouse does NOT have automatic health care proxy powers in Massachusetts, and a court-appointed guardianship could still be necessary.

Without a Durable Power of Attorney a Conservator may need to be appointed by the Court. Additional fees will be incurred and the Conservator will be required to file annual accounts with the Court.  A Conservatorship proceeding may be necessary when an incapacitated individual is unable to make informed decisions regarding their finances, property, or business affairs, or if their assets would otherwise be wasted.  Your spouse does NOT have these powers automatically and a conservatorship could still be required even for a spouse.

Why are these documents important?

1. You stay in control of who makes decisions for you!

When you prepare your estate planning documents you are in control and decide who you would like to choose as your agents to act on your behalf. The individual you choose can act without court oversight in most cases. Conversely, a guardian is not chosen by you, and may need to seek additional authority from the Court to act in special situations such as for admittance to a skilled nursing facility, or to administer certain types of medications or special treatments.

2. You avoid court oversight and expenses.

Once appointed, a guardian and/or conservator needs to file detailed annual reports with the Court. This not only requires additional work on the part of the Conservator but also includes additional expenses such as filing fees, attorney fees, and possible publishing fees, and guardian ad litem fees.

3. Failing to deal with this is among the most stressful and painful situations we encounter in our work. Without these documents, you or your spouse or child run the risk of essentially having a permanent, on-going relationship with the court system during the incapacity, a time frame typically lasting years.

If you know of someone who has been putting off planning with these basic documents, have them call our office and set up an appointment. We will make sure everyone gets the peace of mind they deserve!

Best,

Kristin and Eileen

PS: Alternatively, if you know of someone who is seeking a guardianship or conservatorship for a family member because these documents were not in place, we can also guide them and assist with seeking the proper authority from the Court. Eileen is accepting clients who are in need of a conservatorship or guardianship.