PLANNING FOR INCAPACITY
As important as a Will or Trust might be to ensure that your wishes are followed upon death, the following documents are essential because they deal with your decisions in the event that you are alive but incapacitated or disabled.
These 2 documents are an essential part of any individual's estate plan.
Health Care Proxy/Living Will
This is a document where you appoint a Health Care Agent ("Agent") to make medical decisions on your behalf in the event that you are unable to make or communicate your medical decisions. You can also name an Alternate Agent should the first-named agent be unable to act.
Depending on your personal preference, this document can also contain "Living Will" provisions as guidelines for your named Agent. This section would state your intentions that you DO NOT WANT artificial life support if you are in an "irreversible vegetative" state with no change of recovery, as certified to by your physician. Although living wills are not legally binding in Massachusetts, a written statement of your intentions is frequently very helpful for those documents and your family members that need to make these decisions on your behalf. The Health Care Proxy can either include or not include this provision.
You also have the option of including your intentions regarding organ donation in the Health Care Proxy.
You should also have a "HIPAA" Authorization, naming someone to have authority to obtain your medical information. This can be a separate document, or included in your Health Care Proxy.
There is also something in MA called a "MOLST" - this is a very specific document that you fill out with your doctor and it becomes part of your medical record - it is commonly used for people with serious or terminal illness but anyone can have one. You still need a Health Care Proxy separate from this. See more info here:
Durable Power of Attorney
The durable power of attorney is a document where you appoint an agent (also known as "attorney-in-fact" or "attorney"), to handle your day-to-day general and financial affairs (i.e. bank accounts, real estate). You can also designate a successor attorney or co-attorneys if you so choose.
You have 2 options: (a) the immediate type is effective upon signing and survives incapacity. This means that your named agent does not have to prove incapacity in order to use the Power of Attorney (although the agent would need the actual document in order to act for you), or (b) the "springing" type is not effective until you are incapacitated (it "springs into effect" upon incapacity). The named agent would not be able to act for you without a your physician's certification that you are incapacitated.
**Powers of Attorney should be re-done every 4-5 years (even if you have no changes to make), because many banks and other financial institutions do not accept them if they are older than that.