Planning for Life

By Harry S. Margolis

In Massachusetts, the courts may civilly commit an individual who is of substantial risk to herself and others and may authorize the administration of antipsychotic medications. But if she has a health care proxy, who decides, the court or her health care agent?

By Harry S. Margolis

While we include health care proxies in all the estate planning packages we prepare for clients, you don't need a lawyer to get one. Hospitals and other medical facilities commonly hand out the form created by the Massachusetts Medical Society, which you can also download here.

Just print out the form, choose your agent and a successor, in case your original choice is unavailable, and sign the document before two witnesses.

By Harry S. Margolis

Those who are fortunate can continue to work virtually during the coronavirus shutdown. Lawyers are largely in that group. We can continue to communicate, draft documents, file papers in court or at the registry of deeds, and even hold some court hearings telephonically. Of course, a conference call or even a videoconference does not have the immediacy of an in-person meeting, but it's possible to keep moving forward.

One challenge for estate planning attorneys is how to assist clients with executing their documents, which we had almost always done in person in the past. Here are a few solutions or "work arounds" we've come up with so far:

By Harry S. Margolis

If your parents are getting on in years, you may be assisting them with their finances and other matters, such as medical visits and shopping. You may live close by and be able to visit weekly or more often. Or you may live far and way before the coronavirus, have been visiting every few months. Either way, due to COVID-19, you may not be able to visit right now, whether because flights are no longer available, you're working more than full-time home-schooling your children, your parents' residence has barred visitors, or you yourself are not safe because you have to continue to go out in the world. The last may especially be the case if you are a medical professional.

By Harry S. Margolis

As long as we are 18 or over and have our wits together, we all have the right to make our own health care decisions. But what happens when we become incapacitated, whether temporarily or permanently, and cannot make such decisions?

Then, legally, only a court-appointed guardian or an agent under a health care proxy can make decisions for us. In an emergency, medical providers can take measures to keep us alive, but once the emergency has passed, no one has the right to step in and make decisions in the absence of a health care proxy or guardianship appointment.

By Harry S. Margolis

Why would anyone want to partake in estate planning? It takes time. You have to deal with lawyers. And to talk about your death or disability. It may bring up contentious issues with a spouse or children. It's not urgent, since nothing is likely to happen to you tomorrow, or even in the next few years. It costs money.

So, why should you take time out of your busy life to commit to estate planning? The answer is that there are few other simple steps you can take that will could have as great an impact on your family's welfare. The cost-benefit trade off is tremendous.

By Harry S. Margolis

We advise all of our clients to name an agent under a health care proxy to make health care decisions for them when and if they cannot do so for themselves. Many clients want to name more than one person to this role.

They may not want to be seeming to play favorites by choosing one child over others. Or, more often, they want any health care decisions to be made by all of their children acting together. After all, these can be life and death decisions.

By Harry S. Margolis

We received an inquiry from a nursing home employee about whether a guardian needed court approval to move a nursing home resident to another facility when she also had a health care proxy. Here, we will give a basic answer. If you need more specific information, don't hesitate to get in touch.

Under Massachusetts guardianship law, guardians must first seek court approval before placing the protected person in a nursing home. However, agents under health care proxies have the right to make health care decisions for individuals and, presumably, this would include placement in a nursing home.