Will

A Will is the document that outlines how you wish for your property to be distributed upon your death through the Probate Court process. Without a Will, you are considered to die intestate, and state laws determine your legal heirs. Wills nominate an Executor to administer your estate, a Trustee to manage any funds to be held in trust beyond your death, and a Guardian to raise any minor children.  Assets which pass through your Will (and thus overseen by the Probate Court) include any and all assets that are held in your individual name at your death or which designate your estate as beneficiary.  Any assets which have co-owners or named beneficiaries at your death are not controlled by the terms of your Will, as they do not need to go through the Probate Court process.

Durable

Power of Attorney

A Durable Power of Attorney allows you to name another person or persons to sign your name and perform acts on your behalf.  This person is called your “attorney-in-fact.”  Examples of acts your attorney-in-fact may perform include accessing your bank accounts, paying bills, managing your investments, and selling real estate.  Your Power of Attorney is effective upon signing and is valid until death or revocation.  Although you have appointed more than one attorney-in-fact, each can act independently of the other; i.e., they do not need to act together.  You should keep in mind that third parties are not required to honor this document simply because it is legal – i.e., there is no law regarding its enforceability.  However, most will accept a validly- executed, thorough and current Power of Attorney.

  Health Care Proxy

A Health Care Proxy allows you to appoint someone, called your “health care agent,” to make health care decisions on your behalf, in the event you are unable to make the decisions yourself.  By law, a physician must declare that you are incapable of making medical decisions, even if only on a temporary basis, before your agent can have any authority.  This document does not specify what your wishes are, but rather names the person who will make your medical decisions.  Health Care Proxies are extremely important if it becomes necessary to make decisions concerning termination of life support.

Living Will

This is a companion to the health care proxy.  Whereas the proxy names the individual you wish to make the decisions, the Living Will expresses in writing your wishes with respect to end-of-life decisions.  Although not legally enforceable in Massachusetts, this is a helpful document because it provides evidence of your wishes for your family and any other interested third party (e.g., a hospital, a court).

HIPAA Release Designation

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) contains privacy regulations which require virtually every physician, dentist, nurse, pharmacist, laboratory, and health care provider in the nation to limit access to confidential medical records and information.  In order for your family members, friends, and/or designated health care agents to obtain individually-identifiable health information about you, you must specifically authorize disclosure to these people as well as release of the information in writing.

Emergency Guardian Proxy

This document allows you to name temporary guardians for your minor children in emergency situations.  This document does not require any Court appointment or authority, but is only valid for 60 days without court involvement.

Declaration of Homestead

A Declaration of Homestead is a document recorded at the Registry of Deeds. It protects your principal residence from most creditor claims during your lifetime.  A recent law, effective October 26, 2004, has increased the protection for all homestead declarations (including regular, elderly and disabled) to $500,000.