Health Care and Financial Planning for Current and Future Needs

1. What is Estate Planning?

Estate planning is making a plan for managing your financial matters and health care needs during your lifetime, and distributing your estate after death. An estate plan is typically done with the help of an attorney who can provide advice on protecting and investing your assets, avoiding probate administration, minimizing estate taxes, and executing health care planning documents for possible incapacity. Estate planning tools include a Will, a Health Care Proxy, an Advance Directive or Living Will, a Durable Power of Attorney, possibly a Trust and a Homestead Declaration, and other documents.

2. What is Advance Care Planning?

Advance care planning is making a plan regarding your future health care and treatment. Your plan includes a Health Care Proxy where you appoint a trusted person to carry out your wishes for care if in the future you become incapacitated and cannot speak for yourself. Your plan may also include an advance directive or a living will which contains your instructions and preferences for life sustaining treatment and end of life care. Your directive can be changed overtime as your medical condition, treatment options and goals change. This planning can be done without an attorney or as part of the estate planning process. Planning in advance usually begins with having a conversation with your family and physicians about your medical condition and your preferences, values, and goals for future care and life sustaining treatment. Making a written plan of your wishes lets your family and physicians know how to care for you if you cannot speak for yourself. To learn more about starting a conversation with loved ones and care providers, go to www.theconversationproject.org/

3. What documents will I need to make a plan in advance?

Here are some of the tools you may need for making a health care and financial plan in advance.

Will.  A will is a legally binding document in Massachusetts that contains instructions of who you want to receive your property at your death, and names a trusted person to distribute your property to your heirs and beneficiaries according to your wishes.

Health Care Proxy.  A Health Care Proxy is a legally binding document in Massachusetts that allows you to appoint a trusted person, called a Health Care Agent, to carry out your choices for treatment and make medical decisions on your behalf if you become incapacitated. A Health Care Proxy can avoid the need for a Guardianship.

Advance Directive. The term advance directive, a statement or plan you make in advance about your wishes for future health care, can be confusing as it may have several meanings across health care settings and in estate planning. For example:

1.  A Health Care Proxy is referred to as an Advance Directive;

2. An Advance Directive or Medical Directive is used as a general term to describe a written plan that includes a Health Care Proxy and your instructions regarding life sustaining treatment;

3. An Advance Directive or a Living Will commonly refers to a separate document that contains your written instructions for future medical care and life sustaining treatments. The document typically communicates your wishes for providing or not providing cardiopulmonary resuscitation, intubation and ventilation, artificial nutrition and hydration, care and comfort measures, other medical treatments specific to your condition. The advance directive or living will is not a legally binding document in Massachusetts, but can be very helpful in guiding your Health Care Agent when making medical decisions on your behalf and explaining your wishes to your doctors and loved ones.

The important thing to know, no matter how the term is used, is that a Health Care Proxy appointing a health care agent is a legally binding document; a separate directive of instructions for life sustaining treatment is not legally binding. However, having both a Health Care Proxy and written instructions for life sustaining treatment allows your family and physicians to understand and honor your wishes for future care and treatment.

Durable Power of Attorney. A durable power of attorney is a legally binding document in Massachusetts where you appoint a trusted person, called an Attorney-in-fact, to manage and protect your money, property, and business affairs and make financial decisions on your behalf if you become disabled or incapacitated. A Durable Power of Attorney can avoid the need for Conservatorship.

Trust. A trust is a legal arrangement through which one person, called the Trustee, hold assets for another person, called the Beneficiary, according to the terms of the trust document. There are many different types of trusts that can be helpful in an estate planning process and include trusts to provide for a minor child or a person with special needs, to avoid probate administration or minimize estate taxes, or a charitable trust as a way to give to charities.

4. What is ‘Medical Orders for life Sustaining Treatment’ (MOLST)?

Medical Orders for Life Sustaining Treatment (MOLST) is a document intended for seriously ill patients that stipulates wishes for life-sustaining treatment based on the patient’s current condition. A MOLST form becomes effective immediately upon signing and is not dependent upon a person’s loss of capacity. It does not take the place of a health care proxy. Consideration of MOLST may be an outcome of the advance care planning process To learn more about MOLST, talk to your clinician or go to www.molst-ma.org.