Keeping the court out of your personal decisions

PRIME October 2012 By Gina M. Barry Bacon Wilson P.C. Special to PRIME Each year sees numerous petitions filed with the court seeking the appointment of a guardian and/or conservator for a person who has lost the ability to make their own decisions due to physical or mental illness. This process is expensive, lengthy and public. Fortunately, individuals can almost always keep the court out of their personal decisions by executing two fairly simple documents a durable power of attorney and a health care proxy. A durable power of attorney is a legal document in which an individual names someone to make financial decisions if they are unable to make them. The person named will have complete control of an individual's assets and will be able to manage them as they would if they were able. Spouses, children, relatives and trusted friends are the most obvious choices for this role. Since the person named in a durable power of attorney will enjoy full access to an individual's finances, there is great potential for abuse. The person selected should have some financial savvy, be completely trustworthy and have your best interests at heart. Similarly, a health care proxy is a legal document in which an individual names someone to make medical decisions for them if they are unable to do so. The person chosen does not need to have a medical background, but they must be close enough to an individual to be familiar with his or her health care wishes. They also must be willing to carry out these wishes, even if an individuals' wishes conflict with their personal feelings. It is also important to consider their ability for rational thought during emotional times, as the need for a named proxy to act usually arises due to a traumatic experience or severe illness. "Living will" language is normally included within the health care proxy. Living will language addresses an individual's end-of-life decisions and usually sets forth that they do not want extraordinary medical means used to keep them alive when there is no likelihood for recovery. By including this language in the health care proxy and naming someone you trust, if you do not want to be kept alive by life support systems, your wishes will be made known and be honored by the person you have named to make your health care decisions. Again, for this reason, it is especially important to choose someone who will be able to honor your decision. Additionally, the health care proxy may include a reaffirmation of organ donation wishes as well as instructions for final disposition, including burial or cremation. Normally, a health care proxy is shared with many people, including the person an individual has named as their proxy, as well as with the individual's physician and preferred hospital. By placing instructions in the health care proxy, an individual can again ensure that their wishes will be known and carried out. In both doc-uments, it is important to name alternates. The alternate would step in to make decisions only in the event that the first person named is unable to serve. An individual can name as many alternates as they desire. Naming alternates ensures there will always be a decision maker available who was chosen by the individual, as opposed to one appointed by the court. If circumstances change, a durable power of attorney and health care proxy can be updated so long as the individual remains competent to sign the updated document. Further, should they choose to do so, an individual can easily revoke either of these documents. If you become unable to make your own decisions and you have not signed a durable power of attorney and health care proxy, there will be no one immediately empowered with the authority to make decisions for you. It would be necessary to petition the probate court to have you declared legally incompetent and have a guardian and/or conservator appointed to make your decisions. The court may appoint someone other than the person you would have chosen. Keep the court out of your personal decisions by establishing your durable power of attorney and health care proxy today. Gina M. Barry is a Partner with the law firm of Bacon Wilson, P.C., Attorneys at Law. She is a member of the National Association of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Association. She concentrates her practice in the areas of Estate and Asset Protection Planning, Probate Administration and Litigation, Guardianships, Conser-vatorships and Residential Real Estate. Gina may be reached at (413) 781-0560 or by email at gbarry@baconwilson.com.