While the primary motivation for creating your estate plan may have been to ensure that your assets are handled according to your wishes after you are gone, a comprehensive estate plan can accomplish more than simply deciding what happens to your estate assets after you pass away. A well thought out and properly drafted estate plan can also protect you and your assets while you are alive. In fact, one of the most important aspects of your estate plan should be to ensure that your wishes are honored while you are still here by including advance directives in your plan. Toward that end, the attorneys at Legacy Care Law Firm discuss including advance directives in your New Hampshire or Massachusetts estate plan.
What Are Advance Directives?
Advance directives are legal documents that allow you to express your healthcare preferences and designate someone to make medical decisions on your behalf if you become incapacitated. While each state decides which advance directives are honored within the state, common advance directives typically include:
- Living Will: This advance directive allows you to specify the types of medical treatment you do or do not wish to receive if you are in a terminal condition or permanently unconscious. The precise condition(s) under which the terms of a Living Will become relevant is determined by the state in which the document is executed.
- Healthcare Power of Attorney (or Healthcare Proxy): This advance directive lets you designate someone to make healthcare decisions for you if you are unable to make or communicate them for yourself because you are incapacitated. Appointing an Agent in a Healthcare Power of Attorney does not impact your wishes as expressed in your Living Will.
- Do Not Resuscitate (DNR) Order: A DNR order instructs medical personnel not to perform CPR if your heart stops or you stop breathing. This type of advance directive is typically posted in your home in case first responders are called out to prevent them from trying to resuscitate you.
New Hampshire Advance Directives
In New Hampshire, advance directives are governed by the state’s Advance Directive law which requires that they be signed in the presence of either two witnesses or a notary public. Witnesses cannot be your healthcare provider, your named agent, or an employee of your healthcare provider unless they are a blood relative. New Hampshire recognizes the following advance directives:
- New Hampshire Durable Power of Attorney for Healthcare: Under New Hampshire law, this document allows you to name an Agent to make healthcare decisions for you if you are unable to make or communicate them yourself. It takes effect when a physician certifies in writing that the person no longer has the capacity to make medical decisions.
- Living Will: New Hampshire law allows you to create a Living Will specifying whether you wish to receive life-sustaining treatment if you are in an “advanced life-limiting, incurable and progressive condition.”
- DNR and POLST Orders: A Do Not Resuscitate (DNR) order or Physician Orders for Life-Sustaining Treatment (POLST) form can be used to document specific instructions about resuscitation and other emergency treatments. These forms must be signed by a physician.
Massachusetts Advance Directives
Massachusetts law is different than most other states in that the state does not formally recognize Living Wills. Although you can still execute a Living Will to provide guidance to loved ones and medical providers, the terms of your Living Will are not legally binding, as is the case in other states (including New Hampshire). Massachusetts law requires that a Healthcare Proxy be signed in the presence of two adult witnesses. Unlike New Hampshire, Massachusetts does not require notarization for a Healthcare Proxy. Massachusetts does recognize the following advance directives:
- Massachusetts Healthcare Proxy: This document allows you to appoint a trusted individual to make healthcare decisions on your behalf if you are incapacitated. Unlike New Hampshire’s Durable Power of Attorney for Healthcare, the Massachusetts Healthcare Proxy does not allow you to specify treatment preferences directly but instead relies on your Agent to make those decisions in accordance with your wishes.
- MOLST (Medical Orders for Life-Sustaining Treatment): Similar to a POLST in New Hampshire, a MOLST form provides specific instructions about life-sustaining treatment. It is completed with a physician and is legally binding.
- DNR Orders: Massachusetts residents can obtain a DNR order from their physician if they do not wish to be resuscitated in an emergency. This document is often included in a MOLST form.
Why Advance Directives Are Essential in Your Estate Plan
A comprehensive estate plan can protect you, your loved ones, and your assets both during your lifetime and after you are gone. Advance directives should be an integral part of your comprehensive estate plan for several reasons:
- Ensuring Your Wishes Are Honored: Without clear instructions, family members and medical professionals may be left guessing about your preferences, potentially leading to unwanted medical treatments. Moreover, loved ones may forget discussions you had regarding your wishes given the emotional strain they are experiencing if you are incapacitated.
- Reducing Family Disputes: Clearly documented advance directives help prevent conflicts among family members who may have differing opinions on your medical care. Without clear directions from you, a dispute over who has the right to make decisions for you could lead to an expensive and divisive court battle involving your entire family.
- Avoiding Guardianship Proceedings: If you do not have an advance directive in place, a court may need to appoint a guardian to make healthcare decisions for you, a process that can be costly and time-consuming. Worse still, the person who is ultimately named as your guardian may be someone you would never choose to make healthcare decisions for you.
- Providing Peace of Mind: Ultimately, the bets reason to include advance directives in your estate plan can be that knowing you have designated a trusted individual to handle your medical decisions can provide you and your loved ones with peace of mind.
Advance directives are a crucial component within a well-rounded and comprehensive estate plan, ensuring that your medical decisions are made in accordance with your wishes if you become unable to make or communicate them yourself. While New Hampshire and Massachusetts have different legal requirements, both states provide mechanisms to appoint a healthcare agent and document your treatment preferences. Consulting with an experienced estate planning attorney is the best way to ensure that your wishes are properly documented and honored.
Can We Help You Include Advance Directives in Your New Hampshire or Massachusetts Estate Plan?
For more information, please join us for an upcoming FREE seminar. If you are interested in including advance directives in your New Hampshire or Massachusetts estate plan, contact our estate planning attorneys in our North Andover, Woburn, and Beverly offices at (978) 969-0331. Our Salem and Nashua, New Hampshire office can be reached at (603) 894-4141.
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