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Fundamental Estate Planning in Massachusetts

There are a myriad of legal strategies you might consider implementing as you design your estate plan as well as a handful of "must have" estate planning documents you must create before anything else.

What are these essential documents I must create without delay?

You should have: (i) a will – everyone needs a will; (ii) a health care directive for decisions concerning treatment when you cannot make or communicate your own wishes; (iii) a durable power of attorney that authorizes an "agent" you know and trust to take care of your financial matters; (iv) A HIPPA form, a legal authorization that allows a loved one or friend to access your medical information; and (v) a trust (based on your situation) to manage, protect and eventually to distribute your assets.

Will. A will is a legal document that names guardians of minor children, names your Personal Representative (or “Executor”), and tells the world who should receive your assets.Without a will, a person would die "intestate." In that case, state law divides and distributes the estate to surviving family members based on their relationship to the deceased. A will only works when someone dies, until then it can be changed or revoked by the will maker, and is not binding prior to death.… Your will has no authority to appoint financial or health care decision-makers (agents) for you if incapacitated by an illness or injury (more on that later). A will appoints the guardians (backup parents) in the event something happens to the parents of minor children.

Health Care Proxy. A health care proxy, often known by other names such as an "advance directive," is a document you sign now to specify an agent to make medical decisions for you if you are unable to do so. Everyone age 18 and older needs to have this fundamental legal document signed, a copy on file with their physician, and a copy given to each of their appointed agents. If you have young adult children, the parents do not have the right to direct medical care or even to speak to health care providers without a valid health care proxy or HIPPA release.

How does a health care proxy help my family?
A health care proxy appoints the persons (whether in order of priority or as a "team") you have selected to make medical decisions, so your family and the medical staff know what to do (or what not to do). A proxy should know your wishes when it comes to making tough choices. With that in mind, choose your "point persons" carefully. They will be charged with carrying out some potentially difficult decision and, perhaps, working with difficult family members.

Power of Attorney. This is a legal document giving another person — sometimes called "the attorney-in-fact" or "agent" — the legal authority to make decisions on business matters and other issues on your behalf. The exact scope of the power given is spelled out in the document itself. These powers cease when the maker passes away.

Permission to Access Personal Medical Information (HIPPA release). This document should be right on top of or specifically incorporated within your health care directive. It is your authorization for named persons to view your medical records and discuss your care with medical providers. Without this document or specific authorization, there is the possibility your doctor may decide not to speak to your designated "point persons" — the persons you want to make those tough decisions about your care if you are in an unresponsive state.

Trusts. These come in all sorts of shapes and sizes. Generally speaking, a trust is a legal entity with at least three parties: the creator of the trust, the trustee, and the beneficiary. With most "revocable living trusts," you are all three parties. Depending on your circumstances, there could be advantages to establishing a trust. The most common advantage is avoiding probate. This can help streamline administration of your estate should you become incapacitated and upon your death, keeping your plans private in the process. Some irrevocable trusts may protect trust assets from creditors. Some trusts established under a will or revocable living trust can protect the inheritance for loved ones from squandering, divorces, lawsuits and bankruptcies.

What type of trust is right for you?

It depends on a great many factors. Consult the experienced estate planning attorneys at CannonMurrayLaw, llc to thoroughly review your situation and your objectives.

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