When selecting estate planning agents, take care to build a team
Be it in athletics, the workplace, or the household, effective teamwork has been shown to positively impact outcomes. When creating any kind of estate plan, it is essential to consider how team dynamics might affect your future.
A comprehensive plan provides peace of mind by putting in place protections not only for your heirs but also your future self. One often-overlooked consideration when selecting people for key roles, however, is the cooperation required. Disagreements among your agents can make a difficult time even more stressful.
Power of attorney and health care proxy
Your power of attorney is someone you authorize to make financial decisions on your behalf. Also known as your "attorney-in-fact," this individual will most likely have access to your bank accounts to help you make necessary payments for medical and living expenses should it become necessary. Typically, your attorney-in-fact will share this power with you while you are mentally sound and will continue to hold it should your mental capacity decline with time.
Your health care proxy (or agent) is the person you designate to make medical decisions for you in the event you become unable to communicate your own wishes. He or she can decide to opt into or out of treatments and ongoing care on your behalf. This agent, however, will not have access to your funds.
Where the roles intersect
Because medical providers seldom provide optional treatment when payment is not assured, these two agents must function as a team. Your health care agent may determine the most advantageous course of treatment for you, but your attorney-in-fact must agree to finance it. When these two individuals cannot work cooperatively, treatment may be delayed, diminished, or even disregarded, which could lead to a negative outcome for you.
Although appointed via separate legal documents, a single party may serve as both your health care agent and your attorney-in-fact, which would eliminate the possibility of conflict. Those designating different individuals to serve in these capacities are cautioned, however, to carefully consider their ability to act as a team on your behalf.
Many individuals approach this aspect of estate planning with the same mindset of fairness that they bring to the creation of a will or trust, dividing the roles so multiple family members are involved. Remember, however, that this is not a distribution of assets. This is an assignment of responsibilities, and your decisions in this matter are ones you will have to live with.
Your agents could one day assume responsibility for important aspects of your life. Consider who you trust to act in your best interests and carry out your wishes. Consider who will likely have the capacity to serve in these roles down the road. Would it, perhaps, be wiser to name an individual who lives locally than one who lives an airplane ride away? Or a younger relative rather than a sibling or spouse who may need care before you?
Massachusetts allows for the appointment of multiple concurrent agents in each role. Some individuals may opt to appoint more than one attorney-in-fact in order to divide the labor or for added convenience. Naming multiple health care agents, however, may complicate urgent medical decisions to the point of stalemate. Those who wish to do so might consider naming these parties as successive, rather than concurrent, agents.
Case in point
Consider a scenario that often arises at New Horizons at Marlborough, a popular Catholic-centered not-for-profit senior living community located in Marlborough, MA.
A retiree spends many years living independently and taking advantage of frequent fitness and watercise classes, group activities and outings, and opportunities to worship in the on-site chapel. Over time, this individual might come to need any of the myriad assistive services (help with dressing, bathing, etc.) or specialty programs (geri-psych, diabetes management, memory care) available to all residents.
The New Horizons team will typically work directly with the resident and/or the resident's loved ones to navigate the continuum of care. Should this resident lose capacity, however, care decisions will ultimately depend upon the appointed agents' ability to communicate effectively with each other and reach consensus.
To learn about how residency at New Horizons might fit into your future, call 508-460-5200 or visit CountryCommunities.com.
LAURA MCLAUGHLIN, ESQ. SERVES AS FOUNDATION COUNSEL AND DEPUTY DIRECTOR AT CUMMINGS FOUNDATION, WHICH OPERATES NEW HORIZONS SENIOR LIVING COMMUNITIES IN MARLBOROUGH AND WOBURN. A FORMER TRUSTS AND ESTATES ATTORNEY, MCLAUGHLIN DEVELOPED EXPERTISE IN CHARITABLE GIFT PLANNING AND NONPROFIT LAW WHILE PRACTICING AT BOSTON LAW FIRMS NUTTER MCCLENNEN AND FISH LLP AND BURNS AND LEVINSON, LLP. SHE LIVES IN LYNNFIELD AND HOLDS A J.D. FROM BOSTON COLLEGE LAW SCHOOL AS WELL AS A MASTER'S IN EDUCATION FROM BOSTON UNIVERSITY AND AN UNDERGRADUATE DEGREE FROM TUFTS UNIVERSITY.