Elder Law Services from Attorney Tom Marks

Incapacity Documents Critical in Massachusetts Estate Planning

An adult daughter cannot get her father admitted to a nursing home, even though he suffers from dementia and cannot care for himself. A parent cannot get information regarding medical treatment for her 19-year old son, who is awaiting surgery after an accident on his college campus. Doctors cannot terminate life support for a comatose mother, because her children cannot agree on whether to end or extend life support.

Each of the above problems are taken from real-life situations I have encountered as a Massachusetts estate planning attorney. Notably, they all have a common cause: The patient did not have a Massachusetts Durable Power of Attorney or Health Care Proxy. These “incapacity documents” would have addressed situations like those the patients encountered, and would have permitted a designated agent to act on their behalf.

A Health Care Proxy allows our designated agents to make health care decisions for us if we cannot act for ourselves, subject to any specific wishes or restrictions we put in the document. Through a Durable Power of Attorney, we appoint agents to manage our financial and other affairs, and also to provide consent for all decisions which would otherwise require our approval. Unless we have a legal guardianship over an adult, we have no power to act on his or her behalf without a Health Care Proxy or Durable Power of Attorney.

Parents of college students are often shocked when told they have no legal right to their child’s health care information or to make health decisions on their behalf. Those parental rights terminated when the child turned 18, as did the right to access any of the child’s financial, academic, or other records. Thus, I advise all parents with children in college to have their student sign incapacity documents. Likewise, we have no legal right to act on behalf of our incapacitated spouses or parents – no matter what the situation – without incapacity documents or a court-appointed guardianship. Guardianship proceedings are very expensive, can be contested, and may be lengthy — often too lengthy to make time-sensitive decisions.

Any thoughtful Massachusetts estate plan must plan for incapacity. All adults should have a Durable Power of Attorney and Health Care Proxy which 1) designates an agent, and at least one backup, to act on our behalf if we become incapacitated; and 2) specifies our wishes in various situations, as well as any limits on our agent’s power. Failure to secure these documents may result in risky delays in action; unnecessary family strife over decision-making; and prohibitive expenses if a guardianship proceeding is required. Incapacity documents are inexpensive, and they provide some of the best insurance a family can purchase against the legal perils of incapacity.

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