power of attorney long term care planning medicaid medicare nursing homeDo you have a MOLST? Do you know if you should?

MOLST stands for Medical Orders for Life-Sustaining Treatment. A MOLST is a standardized document that translates a patient’s preferences for certain life-sustaining medical treatments into an actual medical order. The medical order is effectively immediately, as soon as the doctor and patient sign the MOLST. It must be followed just like any other medical order. You can change your MOLST at any time. You can change the treatment you want even if it contradicts what you noted in your MOLST. While you should consult your physician about your specific situation, a MOLST is generally best suited for someone with a serious advanced illness or if the illness is such that the patient is discussing Do Not Resuscitate orders with his or her doctor.

So how is a MOLST different than a health care proxy or advance directive? Your health care proxy and advance directive become effective if you lose capacity. In this situation, you are considered to have lost capacity if you unable to understand or communicate your decisions concerning your health care. For example, if you are unconscious. An attorney drafts them, and they are legal documents. If you are able to discuss your medical care, then neither of those documents is activated. A MOLST is discussed and signed when you are able to discuss your health issues and can sign the form yourself. You should discuss a MOLST with your doctor, not your attorney, because it involves clinical decisions that become medical orders effective immediately. A MOLST is therefore not a substitute for a health care proxy or an advance directive. If you have a MOLST and you are incapacitated, your health care proxy can make decisions for you and those decisions take precedence over your MOLST. This is just one of the reasons I encourage my clients to choose a person they can trust as their proxy. You should have a proxy who knows your wishes concerning medical care, and who you know will make those wishes known to medical personnel if you can’t.

A person should keep a MOLST in a place where it is easy to locate and should carry it on her when she leaves her home. Her primary care provider should also have a copy. I suggest you keep a copy with your estate planning documents as well.

You should talk with your doctor to decide if you need a MOLST. To learn more about MOLST, visit Massachusetts Medical Orders for Life-Sustaining Treatment and talk with your medical care provider to see if one is right for you. Contact me today if you need a health care proxy, advance directive, and other incapacity documents.

Incapacity Documents in Other States

As winter approaches, I’ve been asked by clients who are going to warmer climates whether they should have additional incapacity documents drafted in the state where they will stay most of the winter. The first thing I tell them is to make sure their Massachusetts incapacity documents are current. They may want to change their health care proxy or perhaps the contact information for people listed in those documents has changed.

Once we address the Massachusetts documents and make sure they are current and properly executed, then I talk about the issue of other jurisdictions. If you are just going to another state for a few days or a few weeks, then chances are you do not need to have any additional documents drafted for that state. Generally speaking, another state will honor your documents if you are on a trip and have an accident. There are exceptions, and I discuss those with my clients when they tell me the exact state or states they are visiting. Remember that if you are traveling, you should have a current copy of the Emergency Contact Card behind your license in your wallet.

What happens if you are actually living in another state for months? Attorneys differ on whether or not you should have a second set of documents. The disagreement stems from the fact that if both sets of documents do not comply with both state requirements, then only the ones with the most current date will be followed. The reason the most currently-dated documents will be followed is because there is an assumption that those documents reflect your current wishes and take precedent over the older documents. That may not be the case at all, but that is what will be presumed about the documents. There are several ways to rectify this potential problem. One way is to make sure that both sets of documents follow the execution requirements of both states. For example, Massachusetts requires two witnesses and a notary for most incapacity documents. If the state you are visiting requires three, then it’s easy enough to execute your Massachusetts documents with three, instead of two, witnesses. If you can’t fulfill both states’ requirements or if a state is silent about its requirements, then another possible way to address this issue is to include a notarized letter with your documents, stating that both documents reflect your current wishes, even though their dates may be different.

If you want to find out the best course of action for the state you are visiting, contact me today. Because I am entirely virtual, I can meet with you via phone, email, or Skype/Zoom, even if you have already gone on your travels.

Will vs. Living Will

When I talk to my clients, they often ask if they will get a living will with their documents and how a living will is different from, well, a plain, old regular will. They are actually very different documents.

A will is a legal document that allows you to leave property to certain individuals and organizations when you die. It lists a representative who will oversee the process and make sure your wishes are followed. A will must go through probate, which means it must be submitted to a court for approval. The probate process can take at least 9 months and sometimes years. It is generally a public process so anyone can see what possessions you have left to whom. A will can also be challenged – meaning someone is arguing that it should not be enforced for various reasons – extending the probate process even longer.

A living will is an incapacity document. In Massachusetts, we don’t actually use the term “living will,” which is probably a good thing since it causes so much confusion. We call it an advance directive. It instructs medical personnel about the types of end of life care you want to have and don’t want to have. Interestingly, an advance directive is not legally binding in Massachusetts, unlike the situation in many other states. Why should you have an advance directive if it is not legally enforceable? An advance directive provides end-of-life instructions for your medical personnel as well as your health care proxy, so it is actually a vitally important part of your incapacity documents. Most medical personnel will follow the directions in a properly drafted and executed advance directive. In addition, your health care proxy will undoubtedly be distraught if you are incapacitated to the point of needing end-of-life care. An advance directive takes the pressure off of your proxy having to decide themselves what procedures you want or don’t want at that time.

If you have more questions about wills vs. living wills, aka advance directives, or if you need either or both drafted or updated, please contact me today.

Updating Your Estate Plan

As a part of the estate planning I do for my clients, I contact them each year to see if they need to make any updates or changes to their plan. You may think that once you get your estate plan drafted that you can make some changes just by handwriting in the changes and adding your signature to the change. Not so fast!

There are specific procedures that have to be followed when you execute the documents in your estate plan. According to Massachusetts law, you need a certain number of witnesses and those witnesses must meet certain requirements. You must also have documents notarized. If you do not meet these requirements, then your will, trust, or incapacity documents could be considered invalid after you become incapacitated or die. All that hard work and money that you put into getting your documents drafted correctly by an attorney will be wasted. Even more importantly, you may not receive the care you wanted, and your beneficiaries may not receive the inheritance you left them.

In addition, making a change to your estate plan without having your estate planning attorney do it may have other ramifications. You may put in a term or make a change that is not recognized by Massachusetts. For example, an Irrevocable Medicaid Trust must have certain language in it or it may be successfully challenged by Medicaid, causing you to potentially lose your home to pay for nursing care costs. An estate planning attorney stays current on any state law that may effect estate plans. This allows her to draft documents that meet your needs and are legally binding.

If you haven’t updated your estate plan in the last year or longer, contact me so we can see if you want any changes made, and I can make sure they are done correctly.

What is Intestate?

 wills trustsLet’s back up a minute. What happens if you die without any estate planning at all? No will, no trust, nothing. If this happens, then you die intestate. Several things happen if you die intestate.

Your estate must go through probate if you die intestate. This means the court must get involved to rule on the distribution of your assets because whatever possessions and property you have must, by law, be distributed. If you die without a will or trust, then Massachusetts law dictates how your assets will be distributed. You will not have any say in the matter. The loved ones you leave behind will have to pay legal and court filing fees for probate, will have to wait a long time for your assets to be distributed, and will find that whole process — including what was in your estate and who it goes to — is part of the public record for anyone and everyone to see.

When you die intestate, who gets your assets and how much depends on factors such as whether your spouse survives you, whether your parents survive you, and whether you have any surviving descendants. The intestacy statute( MGL c.190B, §§ 2-101 et seq) also has some explanations that you might not want applied to your estate. For example, relatives of the “half-blood” inherit the same as relatives of the “whole blood.” (MGL c. 190B, § 2-107) In addition, you may have heirs born after your death if they were in gestation at a certain time. (MGL c. 190B, § 2-108) As you can imagine, it can get a bit complicated.

How best to avoid this? Get an estate plan, even if it’s just your incapacity documents and a simple will. That is the best way to make sure your wishes are followed and those you care about are taken care of the way you want.