If you or a loved one lost the ability to make decisions about health care or financial matters, who would make these decisions? If you have not planned for such a contingency, a court would appoint a guardian or conservator to make decisions for the incapacitated individual. However, the laws of Massachusetts allow individuals to decide who will have responsibility for their affairs in the event that they are incapacitated. Some people avoid planning for such situations, since illness and injuries can be unpleasant to think about. However, planning for life’s eventualities can bring peace of mind both now and in the future.
Health care proxies can be appointed to make medical decisions in the event that a person loses the capacity to make medical decisions. Appointing a health care proxy is very easy, and does not require an attorney. The Massachusetts health care proxy form and instructions can be found here. Having a health care proxy ensures that medical decisions made in the event of incapacitation reflect your wishes.
A guardianship is created when the Probate Court gives a guardian the power to make personal decisions (e.g. regarding health, safety, and care) on behalf of an incapacitated person. See G.L. c. 190B, §§ 5-301, 306. Guardians may be nominated in advance, using a document called a durable power of attorney. In the absence of a durable power of attorney, a court will look first to spouse and parents as it decides who will serve the best interests of the incapacitated person.
A conservatorship is created to allow an agent to manage the property and business of an incapacitated person. Conservators may be individuals or corporations. See G.L. c. 190B, § 5-409. As with guardians, conservators may be nominated in a durable power of attorney, to become effective only if necessary.
Providing for a health care proxy, guardian, and conservator allows you to choose who will make decisions for you if you become incapacitated. The interrelated roles of these designations can be confusing. A full estate plan will address all of these issues. You can be confident that you and your family members will be taken care of. Do not leave these life–altering decisions to luck or chance. Contact the attorneys at Hutchins Law, P.C. today for help planning for you and your family’s future.