Uniform Probate Code - Advance Directives

THETHEUNIFORM PROBATE UNIFORM PROBATE CODE IN COURT – CODE IN COURT –

Advance DirectivesAdvance DirectivesPt. 3 of a SeriesPt. 3 of a Series

Specific Interpretation for Specific Interpretation for Massachusetts Elder LawMassachusetts Elder Law

Steven M. Cohen, Esq.Steven M. Cohen, Esq.Cohen & Oalican, LLPCohen & Oalican, LLP

18 Tremont Street - Suite 90318 Tremont Street - Suite 903Boston, MA 02108Boston, MA 02108

(617) 263-1035(617) 263-1035

ADVANCED DIRECTIVESADVANCED DIRECTIVES

There are simple steps that clients There are simple steps that clients can take while they are healthy to can take while they are healthy to ensure that their wishes regarding ensure that their wishes regarding their finances and health care their finances and health care decisions are respected in the event decisions are respected in the event that they become incapacitated by that they become incapacitated by illness.illness.

ADVANCED DIRECTIVES - ADVANCED DIRECTIVES - Power of AttorneyPower of Attorney

In 1990, the Massachusetts legislature enacted the In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized Massachusetts' citizens to execute a court recognized durable power of attorney. durable power of attorney.

Since then, 27 other states, including the District of Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the durable power of attorney statutes based on the Uniform Act. Uniform Act.

A power of attorney is a document that allows a client A power of attorney is a document that allows a client to appoint an individual to act as the client's agent to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the ("attorney-in-fact") on financial matters should the client ever become incapacitated. client ever become incapacitated.

Given the broad authority typically granted under a Given the broad authority typically granted under a power of attorney, it is obviously important that the power of attorney, it is obviously important that the client be confident that the agent will act in client be confident that the agent will act in accordance with the client's wishes. accordance with the client's wishes.


There are few formalities to creating a power There are few formalities to creating a power of attorney. of attorney.

However, it makes sense to have the power However, it makes sense to have the power of attorney notarized so that it can be used of attorney notarized so that it can be used to transfer real estate if necessary. to transfer real estate if necessary.

Also, as some States require that the power Also, as some States require that the power of attorney be witnessed, it makes sense to of attorney be witnessed, it makes sense to have witnesses so that the document would have witnesses so that the document would be honored in other States.be honored in other States.


If a client wants to appoint more than one person the client can If a client wants to appoint more than one person the client can require that they must act together or permit them to act require that they must act together or permit them to act separately. separately.

If you want the agents to be able to act separately, the form If you want the agents to be able to act separately, the form must state this explicitly. must state this explicitly.

However, clients should at least appoint alternates to avoid the However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. problem of the attorney-in-fact not being available.

In deciding who to appoint the client should obviously consider In deciding who to appoint the client should obviously consider whether the person is trustworthy. whether the person is trustworthy.

Although, the person does not need to be a financial expert, it Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire with financial matters and who has the common sense to hire professionals when necessary. professionals when necessary.

Finally, be careful not to appoint anyone who has a history of Finally, be careful not to appoint anyone who has a history of financial problems. financial problems.

The pressures of debt or other financial strain may cause even The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their the most trustworthy person to use the client’s funds for their own needs.own needs.


It is important to be sure that a client's power of It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. should a client become incapacitated. M.G.L. c.201B §1(a). c.201B §1(a).

To create a durable power of attorney the To create a durable power of attorney the document must contain specific language document must contain specific language referencing that the client's future disability will not referencing that the client's future disability will not effect the power of attorney. effect the power of attorney.

M.G.L. c. 201B §1(a). A client should also consider M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate client's attorney-in-fact to take advantage of estate planning strategies. planning strategies.

Without specific language regarding gifting, future Without specific language regarding gifting, future gifts made by the attorney-in-fact may be gifts made by the attorney-in-fact may be disallowed. disallowed.


Most powers of attorney take effect when executed, even Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the though the usual intent is for them to be used only in the event of the incapacity of the grantor. event of the incapacity of the grantor.

A client has the option of executing a "springing" power of A client has the option of executing a "springing" power of attorney that will only become effective when the client's attorney that will only become effective when the client's physician signs it stating that in his or her opinion the physician signs it stating that in his or her opinion the client has become incapacitated. client has become incapacitated.

However, our office has found that banks and other However, our office has found that banks and other financial institutions don’t like springing powers of attorney financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really as they raise questions of whether the client is really incapacitated. incapacitated.

Or a client can enter into an escrow agreement with the Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release always retain the option of directing their lawyer to release the power of attorney.the power of attorney.


A client can revoke a power of attorney at any time. A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-All the client needs to do is send a letter to the attorney-

in-fact informing them that their appointment has been in-fact informing them that their appointment has been revoked. revoked.

The client should also write any financial institution where The client should also write any financial institution where the power of attorney might be used, putting them on the power of attorney might be used, putting them on notice that the document has been revoked. notice that the document has been revoked.

A conservator or guardian can also revoke a power of A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or attorney, but the appointment of a conservator or guardian does not automatically revoke a power of guardian does not automatically revoke a power of attorney. attorney.

In fact, in Guardianship of James A. Smith, 684 N.E. 2d In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney his future guardian through a durable power of attorney mandates that the court appoint such nominated mandates that the court appoint such nominated guardian in the absence of good cause or disqualificationguardian in the absence of good cause or disqualification


The attorney-in-fact owes a fiduciary duty to the person who The attorney-in-fact owes a fiduciary duty to the person who appoints them. appoints them.

M.G.L. c.201B §3(a). According to the Uniform Probate Code a M.G.L. c.201B §3(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: fiduciary duty consists of a legal duty to:

account; account; segregate assets; segregate assets; make trust assets productive in accordance with a reasonably, make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; prudent person dealing with other people's money; not delegate the responsibility to someone else; not delegate the responsibility to someone else; and not to self deal. and not to self deal.

U.P.C. §5-202. It is very important that the attorney-in-fact U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of keeps good records of his or her actions under the power of attorney. attorney.

Finally, the attorney-in-fact does not have any responsibility to Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. use their own personal funds to pay bills of their principal.

However, it is important that whenever the attorney-in-fact signs However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their their name, they always clarify that they are doing so in their capacity as agent rather than individually. capacity as agent rather than individually.

ADVANCED DIRECTIVES - ADVANCED DIRECTIVES - Health Care Proxy/Living Health Care Proxy/Living

WillWill A health care proxy is a document by which a client (the A health care proxy is a document by which a client (the

principal) may give another person (the agent) the authority to principal) may give another person (the agent) the authority to make health care decisions should the principal become make health care decisions should the principal become incapacitated. incapacitated.

In contrast to the proxy, a living will is a client's written In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would statement as to specific treatments the client would or would not want initialed. not want initialed.

M.G.L. c.201D §2. On December 18, 1990, in response to the M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by adult shall have a right to appoint a health care agent by executing a health care proxy." executing a health care proxy."

M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. specific intention not to be kept alive by artificial feeding.

Some form of living will or health care proxy statute exists in Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbianearly every state, including the District of Columbia


WillWill Health care proxies are vitally important when a patient is Health care proxies are vitally important when a patient is

incapable of giving instructions to medical professionals, incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. systems that is not consistent with the patient's values.

The proxy will permit the agent to order the withdrawal of The proxy will permit the agent to order the withdrawal of such life support. such life support.

A proxy is also important if there should be a disagreement A proxy is also important if there should be a disagreement among family members since it appoints one individual to among family members since it appoints one individual to represent the patient. represent the patient.

Alternates should be named in the event the first person Alternates should be named in the event the first person appointed cannot serve for any reason. appointed cannot serve for any reason.

To avoid potential conflicts of interest, no operator, To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, unless he or she is related to the principal by blood, marriage, or adoption. marriage, or adoption.

M.G.L. c.201D §3.M.G.L. c.201D §3.


WillWill It is best that the health care proxy also include a It is best that the health care proxy also include a

medical directive giving the principal's agent medical directive giving the principal's agent guidance on what the principal wishes would be guidance on what the principal wishes would be done in a given situation. done in a given situation.

More capacity is required to give medical More capacity is required to give medical directives than is required simply to delegate directives than is required simply to delegate decision-making authority. decision-making authority.

These medical directives enable a principal to These medical directives enable a principal to ensure that his or her own wishes regarding ensure that his or her own wishes regarding treatment decisions are respected.treatment decisions are respected.

If the principal's family ever has to make these If the principal's family ever has to make these difficultdecisions, their burden will be eased by difficultdecisions, their burden will be eased by the expression of a principal's wishes provided by the expression of a principal's wishes provided by a directive. a directive.


WillWill According to M.G.L. c.201D §2, health care According to M.G.L. c.201D §2, health care

proxies must be in writing and signed by a legally proxies must be in writing and signed by a legally competent adult. competent adult.

Two witnesses must be present to attest that the Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of principal appeared to be at least 18 years old, of sound mind, and under no undue influence. sound mind, and under no undue influence.

Unlike a typical power of attorney which is Unlike a typical power of attorney which is immediately effective, a health care agent is only immediately effective, a health care agent is only authorized to make decisions when an attending authorized to make decisions when an attending physician has certified in the medical record that physician has certified in the medical record that the principal can no longer give their informed the principal can no longer give their informed consent. consent.


WillWill In order to ensure that the principal's In order to ensure that the principal's

wishes are respected regarding health care wishes are respected regarding health care decisions, it is important that they have a decisions, it is important that they have a candid conversation with their agent to candid conversation with their agent to make sure their values are understood. make sure their values are understood.

In addition, copies of the health care proxy In addition, copies of the health care proxy should be kept with the principal's personal should be kept with the principal's personal records and a physician should have one records and a physician should have one filed with the patient's medical records.filed with the patient's medical records.


WillWill The role of the health care proxy continues to be The role of the health care proxy continues to be

clarified. clarified. Specifically, since Rogers v. Commissioner of the Specifically, since Rogers v. Commissioner of the

Department of Mental Health, the use of health Department of Mental Health, the use of health care proxies has become controversial in the care proxies has become controversial in the administration of antipsychotic medication. administration of antipsychotic medication.

The Rogers court ruled that if a patient is not The Rogers court ruled that if a patient is not capable of giving their informed consent, health capable of giving their informed consent, health care professionals cannot administer care professionals cannot administer antipsychotic medication without first obtaining antipsychotic medication without first obtaining court authority to do so. court authority to do so.

This rules applies even if the patient was This rules applies even if the patient was accepting the medication. accepting the medication.


WillWill This case also implies that a health care agent has This case also implies that a health care agent has authority to assent to any medical treatment for his or her authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic principal, including treatment with antipsychotic medication. medication.

However, if the principal is objecting to the treatment, this However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that is taken as a revocation of the proxy regarding that treatment. treatment.

In that event, the agent would have to obtain court In that event, the agent would have to obtain court authority.authority.

In addition, according to a letter from the Office of the In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. antipsychotic medication without a Rogers hearing.

If, however, a patient refuses or objects to the If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a judgment is required, regardless of the existence of a health care proxy. health care proxy.


WillWill In 2009 the Uniform Probate Code clarified that In 2009 the Uniform Probate Code clarified that

decisions made by a health care agent take decisions made by a health care agent take precedence over those made by a guardian. precedence over those made by a guardian.

In addition, a guardian cannot revoke a health care In addition, a guardian cannot revoke a health care proxy without obtaining court authority. proxy without obtaining court authority.

Problems sometimes arise if a patient has a health care Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with proxy in place, is incapacitated and is disagreeing with decisions made by their agent. decisions made by their agent.

As stated above, the patients refusing treatment can As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. as it pertains to that particular situation.

As an alternative to commencing a guardianship As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health in probate court a petition to affirm that the health care proxy is valid and that the patient is too care proxy is valid and that the patient is too incapacitated to make medical decisionsincapacitated to make medical decisions


WillWill Health care proxies and living wills are often confused. Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a As stated above, the health care proxy appoints a

person to make medical decisions on their behalf. person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s A living will on the other hand, expresses an individual’s

wishes regarding specific treatment decisions. wishes regarding specific treatment decisions. The health care proxy is the more important of the two The health care proxy is the more important of the two

documents. documents. Living wills may be helpful to determine the client’s Living wills may be helpful to determine the client’s

wishes but they are not legally enforceable by wishes but they are not legally enforceable by themselves. themselves.

Clients should avoid living wills which attempt to create Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. wishes on all treatment situations.

If the client lists one hundred situations, the agent may If the client lists one hundred situations, the agent may face a situation that is not listed. face a situation that is not listed.


WillWill In that event, the health care provider may be left In that event, the health care provider may be left

with the impression that since the patient did not with the impression that since the patient did not specifically list the treatment that may not have specifically list the treatment that may not have wanted to give their agent authority to make that wanted to give their agent authority to make that decision. On the other hand, it is important for clients decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. to clarify their wishes regarding treatment decisions.

The healthcare proxy can be drafted to include The healthcare proxy can be drafted to include “medical directive” language. “medical directive” language.

A medical directive describes in broad general A medical directive describes in broad general language what the clients wishes are regarding language what the clients wishes are regarding treatment. treatment.

Because the directive is general rather than specific, Because the directive is general rather than specific, the health care agent can apply it to any situation the health care agent can apply it to any situation they face. they face.

THETHEUNIFORM PROBATE UNIFORM PROBATE

CODECODESteven M. Cohen, Esq.Steven M. Cohen, Esq.Cohen & Oalican, LLPCohen & Oalican, LLP

18 Tremont Street - Suite 90318 Tremont Street - Suite 903Boston, MA 02108Boston, MA 02108

(617) 263-1035(617) 263-1035

Uniform Probate Code - Advance Directives

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