I know that neither of these topics is particularly cheery, but in some cases they do go hand in hand. If your marriage is going downhill, and you anticipate a divorce, or are in the process of getting divorced, it makes sense to take two immediate steps:
Name someone other than your spouse as your healthcare proxy; and
Revoke any durable power of attorney that allows your spouse to sign papers on your behalf, and designate a new power of attorney to act for you if you are incapacitated.
These two steps should be taken right away. As long as you are still legally married, these documents generally continue to be in effect, and as you probably know, a divorce can take a long time to finalize.
Comprehensive estate planning is important, but it is unrealistic to think that most couples can deal with it while going through a separation or divorce. Estate planning can wait a bit, but these other steps cannot wait. My office is happy to assist you with this, and credit the amount towards an estate plan, or if you are working with a family law attorney, he or she should be able to assist you with a new health care proxy and power of attorney.
One of the scariest scenarios we face is the prospect of no longer being able to make our own decisions and to think for ourselves. Often this is a process of gradual decline, and either we, or those close to us, can see the changes and understand what is happening. If you have not done advanced planning, that’s a good time to get moving. There are some fairly straightforward documents that you can draft and execute which will allow those you love and trust to make important decisions.
1. Health Care Proxy: this document names the person who can make medical decisions for you in the event that you are unable to make them yourself. In Massachusetts, only one person can be named at a time, but you can have successor agents in case the first person is not available. I recommend that everyone have a Health Care Proxy (including young adults so that doctors must listen to their parents, or to the person they have designated).
If you do not have a Health Care Proxy and there is a disagreement about your care, it is possible that a Guardian will have to be appointed by the probate court. This is a process that can be time consuming, complex, and expensive. In the end, the court decides who will make decisions about your care, not you.
2. Durable Power of Attorney: this document names a person who can sign documents on your behalf, and who can make financial and administrative decisions on your behalf. This can be effective now, or it can come into effect upon your incapacity.
Like a Health Care Proxy, if you do not have a Durable Power of Attorney, and become incompetent, a family member or caregiver will have to go to court to be named to represent you. This person is called a Conservator, and this process, like naming a Guardian, requires court involvement and much expense. It also means that the court makes the final decision about the person best suited to manage your affairs. Judges are wise and thoughtful, but they don’t know you or your family members the way that you do – don’t you think you’ll make a better decision?
A durable power of attorney gives another person (agent or attorney in fact)the right to make financial decisions on your behalf. (It’s “durable” if it still works when you are incapacitated). A power of attorney is useful if you’re closing a real estate deal when you’re in China, someone else can sign the paperwork for you. It’s also a basic estate planning tool that allows your agent to pay your bills and handle your financial matters if you’re incapacitated.
A power of attorney can be very narrow in time (only effective on the closing date) or broad (starts now and is in effect until I die). It can also be broad or narrow in its powers. It is a very powerful tool, so be sure that the person, time period and powers are those you’re comfortable entrusting to your agent. In general, financial institutions prefer original DPOAs, so when you’re at your attorney’s office, you might execute several originals.
Much like other estate planning documents, it’s important that you communicate your wishes to your agent, so they will act in a way that you would approve of. A final note, this document terminates on death, so your agent will not be able to access your safety deposit box if you die with your will there, so DON’T PUT YOUR WILL IN YOUR SAFETY DEPOSIT BOX.
I know that lawyers hate to admit that there is any such thing as a basic, vanilla estate plan. The truth is, there is such a plan and some people have a need for one. Equally true, however, is that you should probably have some good advice before you decide that you are one of those people. When I talk about “basic”, I’m talking about the following items (this is somewhat specific to Massachusetts residents). In later posts, I’ll describe each in some detail and give tips for getting organized to create one.
— Trust (maybe)
— Health Care Proxy
— Power of Attorney
— Emergency Guardianship Proxy (if you have minor children)
— A complete review beneficiary forms