WILLS:
A properly executed will prevents your assets from being distributed upon your death by the laws of intestacy. In Massachusetts, if your spouse and children survive you and you have no will, your property will be split equally between your spouse and children. Consequently, unless you wish your assets to be distributed in this fashion, you must have a will. Your will also appoints your executor and whomever you would like to have serve as guardian of your minor children. There is presently no protection in Massachusetts for unmarried partners and thus a will is an essential document to ensure that your partner will receive or retain the assets and possessions that you wish for them to have.

A will can be changed, revoked or replaced by a new will at any time, so long as you remain legally competent to do so. To be considered "competent," you must understand the nature of your act, know the extent of your estate, and be able to identify the people you wish to benefit.

The following circumstances may warrant construction of a new will or amendment of an existing will:

• Marriage or divorce (marriage revokes a prior will in its entirety while divorce revokes all portions relevant to the former spouse);
• The birth of a new child or grandchild;
• A change in your permanent address;
• A change in tax laws;
• A substantial increase or decrease in the value of your assets;
• A significant change in your relationship with a beneficiary.

TRUSTS:
Trusts are very flexible instruments with many drafting options and can be of great benefit to both married and unmarried couples. A properly constructing trust can allow the grantor control over his or her assets while alive, while simultaneously protecting an unmarried spouse in the event of incapacity or death. Unlike a will, trusts do not have to be proven, thus making legal challenges to a trust much more difficult than challenges to a will.
One of the primary benefits of constructing a trust is that assets transferred to a trust prior to death do not pass through probate and are instead administered by the Trustee. This eliminates probate fees, additional legal fees and publicity resulting from public access to records, hearings that may be involved in the probate of a will, and costly accountings in the Probate Court.

Other benefits of a trust include:

• Trust assets can be protected from creditors of the surviving spouse or children. Upon the death of the spouse, assets held in trust for the children cannot be attached (except for necessities) or used as collateral for loans.
• Provisions may be established should the spouse become ill or incapacitated without requiring an application to the court for appointment of a conservator.
• Successor trustees may be appointed in the trust instrument thus eliminating the need for a court appointed Trustee.
• A trust can minimize, and in some cases eliminate, Federal estate taxes by taking full advantage of the unlimited marital deductions.

DURABLE POWER OF ATTORNEY:
While a will carries out your instructions after your death, the durable power of attorney allows you to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it is necessary to apply to the Massachusetts Probate Court to have a guardian or conservator appointed to make decisions for you when you are disabled. That process is very expensive, often costing thousands of dollars, and can be extremely time-consuming. Massachusetts General Law chapter 201B creates two types of durable power of attorney in Massachusetts: (1) A "present" durable power of attorney in which the power is immediately transferred to your attorney in fact; or (2) A "springing" or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. When you appoint another individual to make financial decisions on your behalf, that individual is called an "attorney in fact". Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend.
Appointing a power of attorney assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

LIVING WILLS:
The Living Will is a document that allows your doctors to forego heroic measures in the event of your terminal illness of injury. Although courts in Massachusetts have recognized the right of an individual to refuse medical treatment, Massachusetts law has not yet recognized the Living Will by statute. Nevertheless, if you feel strongly about these issues, you should have a Living Will to stand as evidence of your wishes and directions should you be unable to make these decisions for yourself.

There is no statutory guidance or case precedence regarding living wills in Massachusetts. Without court guidance, it is impossible to determine whether the wishes expressed in a living will are binding on the medical provider. However, living will language can be incorporated in a health care proxy to provide the agent with guidance regarding your health care wishes. Such guidance may address termination of life support, preferences for type of medical care, or limits to the agent's scope of authority.

Living wills inform others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. All but three states-Massachusetts, Michigan and New York-have passed living will laws to protect a patient's right to refuse medical treatment. Even in states without living will laws this document is useful to a judge trying to decide what an unconscious patient would want. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.

HEALTH CARE PROXY:
Massachusetts has recognized the right of an individual (the principal) to delegate health care decisions to another (the agent) via a document called a health care proxy. The agent's right to act on your behalf arises only if you are unable to communicate directly with your doctor or other health care practitioners. This designation may be revoked at any time by clearly expressing your desire to revoke a prior health care proxy or by executing a new health care proxy.

Under Massachusetts General Law chapter 201D, a competent adult may appoint a health care agent to make decisions for him or her should incapacity strike. This agent has priority over any other person who is making health-care decisions for the principal when he or she is unable to do so. Your agent's authority to make health care decisions under the proxy law is activated upon a determination by your physician that you lack the present capacity to make health care decisions on your own. In order to best act on your behalf, the agent has the legal right to get any information, including confidential medical information, necessary to make informed decisions regarding your diagnosis, prognosis or condition. The agent's decisions will have the same authority as if you had made them and will be honored over those of any other person. If you give an agent full authority to act, the agent can consent to or refuse any medical treatment, including treatment that could keep you alive.

In the absence of express provisions to the contrary, medical providers usually look to next of kin to make health-care decisions for an incapacitated individual. This may leave unmarried couples powerless to carry forward the wishes of his or her partner. In conjunction with other estate planning tools, a health care proxy can bring peace of mind and security to married and unmarried couples in the event of future incapacity.

All material on this site is intended for general information purposes only and does not constitute legal advice. For legal issues that arise, the reader should consult legal counsel. Responses to inquiries whether by e-mail, telephone or other means do not constitute legal advice nor do they create or imply the existence of an attorney-client relationship.

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