Everyone upon attaining the age of 18 should have an up-to-date suite of Incapacity Documents, even though 18 year olds rarely have much in the way of assets.

Incapacity Documents are: a General Durable Power of Attorney, a Health Care Proxy, and a HIPAA Authorization.

A General Durable Power of Attorney authorizes the named Agent (or “Attorney-in-Fact”) to act for the Principal (the person who created the Power of Attorney) in all but medical/health care matters. It can be a broad grant of powers or very narrow. Even if a person has a funded revocable living trust, some assets such as IRAs cannot be titled to revocable living trust, so a Durable Power of Attorney with appropriate powers is necessary to manage an IRA with the owner is incapacitated. Beware that financial institutions are generally suspicious of powers of attorney and are slow to accept them. Special Needs Law Group of Massachusetts advises its clients of ways to prepare in advance to help ensure that a client’s Durable Power of Attorney is accepted when the time comes.

Most states, including Massachusetts, permit so-called “springing” durable powers of attorney, which are only valid during the incapacity of the Principal. While that sounds like exactly what is desired for an Incapacity Documents, we find springing Durable Powers of Attorney to be nearly useless, as financial institutions typically will not honor them or require a court adjudication of incompetence to honor them. (Springing durable powers of attorney are so problematic that Florida made any executed on or after October 1, 2011 invalid by statute.) So instead, we draft all our Durable Powers of Attorney to be good immediately. Your Agent still has a duty to you to only do what you would want or what is in your best interests.

A Health Care Proxy on the other hand is by statute “springing” in most states. (The document is known by other names in other states, such as a “Durable Power of Attorney for Health Care”.) A named Health Care Agent’s authority only “springs” into action once the attending physician notes in writing in the Principals’ medical records that the Principal is unable to make or communicate medical decisions. But until that time, the Health Care Agent has no authority, and has no right to medical information about the Principal.

It was the lack of a Health Care Proxy that gave rise to the infamous Terri Schiavo case in Florida from 1990 to 2005.

A HIPAA Authorization by contrast is good immediately. You can name as many different people as you want that doctors, medical professionals, and health insurance companies may communicate with. Persons named on the HIPAA Authorization do not have authority to make decisions for you, but do have access to information and can converse with your doctors.

Much popular press and many attorneys, particularly in states outside Massachusetts, are strong proponents of a class of documents known as “Advanced Directives.” The classic is the Living Will. This is a document whereby you direct certain medical actions are prescribed or prohibited under various circumstances, in advance of those circumstances. Many attorneys will tell you that a Living Will is not valid in Massachusetts; this is not true. Under the US Supreme Court’s Cruzan case, a Living Will is a constitutionally protected expression of self-determination. However, three states have no Living Will statute (Massachusetts, New York, and Michigan), and so rather than being self-executing, a court order would be required to put into effect the directives of a Living Will in those states.

Regardless of which of the fifty states you are in, we at Special Needs Law Group of Massachusetts believe that as “directives” Living Wills are dangerous and ill advised. Rather, we advocate writing guidance for your Health Care Agent.

Under certain circumstances, true end-of-life directives, such as the MOLST (Massachusetts Orders for Life Sustaining Treatment) may be appropriate.