Massachusetts Elder Law Blog

Substituted Judgment Part II -- Reproductive Rights and the Incapacited Person in Massachusetts

2012-02-06T14:56:00.000-05:00

My last posting concerned the background of how Massachusetts law deals with medical decision-making for incapacitated persons who need potentially invasive treatment that can have profound and permanent consequences. I noted that unlike many states, where the decisions may be left to a guardian to decide what is in a person's best interest, Massachusetts law requires a judge to step into the shoes of the incapacitated person and determine as best as possible what the incapacitated person would want if he were competent and able to voice an opinion. The law says an incapacitated person may be competent to make some decisions but not others. By law, the court is supposed to consider such variables as the likely outcomes with or without treatment, risk and benefit of the proposed treatment, whether the person has a supportive family and the impact on the person's family which may be caused by the proposed treatment if the person were competent, the person's religious beliefs and whether those beliefs would influence the person's decision-making if competent. The judge does not have to agree with the person's likely decision in order to make the substituted judgment -- after all, even persons of great intelligence and competency can make bad decisions about their health care -- but if the evidence points to a conclusion that the person would take a certain action if competent, then that's what the judge is supposed to order.

There is a long, sad history of forced sterilization being imposed in all fifty states on people without a hearing or any evidence presented other than the assumptions and prejudices of people with power. (A good example of this situation occurred in North Carolina, which is only now being settled.) While I am not aware of any statistics concerning the number of cases heard in the Probate Court concerning requests for sterilization and abortions for persons who are legally incapacitated, my sense based on discussions with colleagues who have a substantial guardianship practice suggests that these proceedings are now quite rare. (In 16 years of guardianship practice, I have only had one such case -- and the guardian decided not to go forward.)

In 1982, the Supreme Judicial Court extended the substituted judgment doctrine to reproduction, noting that "the personal decision whether to bear or beget a child is a right so fundamental that it must be extended to all persons, including those who are incompetent." The person potentially subject to such an order must be given adequate notice of the proceedings, an opportunity to be heard concerning whether whether she has the ability to give informed consent, a determination of substituted judgment if there is no such ability, and the right to appeal. The person is appointed specially-trained legal counsel to be sure that their constitutional rights are fully protected, and may receive funds from the court to hire an expert to advise on the necessity of the proposed procedure and provide testimony about the medical benefits and risks. A Guardian ad Litem is usually appointed to conduct an independent investigation of the facts and submit a written report. The judge is hold a hearing, weigh the evidence and make a detailed decision describing all the relevant facts, the substituted judgment criteria, and apply the facts to the law to determine if the person would want to be sterilized or have an abortion if they could make an informed decision.

Next Entry: The Mary Moe Case

How well do the courts honor the wishes of incapacitated persons?

2012-01-23T13:31:00.005-05:00

There was a terrific article in yesterday's Boston Globe (warning - pay wall unless you're a Boston Globe subscriber) concerning to what extent the wishes of legally incapacitated persons concerning extraordinary medical treatment are actually honored. Extraordinary medical treatment includes such matters as end-of-life decisions, use of antipsychotic medication,sterilization and abortion, and so forth.

This issue has been of great interest to me since law school. Massachusetts is one of the few states where such decisions are left in the hands of judges, who must decide whether the treatment is something that the incapacitated person would want if competent -- in most states, the decision may be left to the guardian, who decides whether the treatment is in the incapacitated person's best interest. One of the first Massachusetts cases on point is the Saikewicz matter. This case from the early 1970's involved a profoundly developmentally disabled 67 year old man who suffered from leukemia. The argument over whether he should receive chemotherapy which, at best, would only briefly extend his life at the cost of considerable side effects. The trial judge, after weighing the pluses and minuses (including the extent to which side effects can be managed, the low rate of remission, the patient's inability to cooperate with treatment, and the anticipated likelihood of death without treatment), determined that treatment should be withheld because it would not be in Mr. Saikewicz's best interest.

The Supreme Judicial Court took a different tack. While adopting the factual findings of the trial judge, the SJC looked at Mr. Saikewicz's right to privacy balanced against the state interest in preserving life given the facts.

"The interest of the State in prolonging a life must be reconciled with the interest of an individual to reject the traumatic cost of that prolongation. There is a substantial distinction in the State's insistence that human life be saved where the affliction is curable, as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual that life may be briefly extended. Even if we assume that the State has an additional interest in seeing to it that individual decisions on the prolongation of life do not in any way tend to "cheapen" the value which is placed in the concept of living, see Roe v. Wade, supra, we believe it is not inconsistent to recognize a right to decline medical treatment in a situation of incurable illness. The constitutional right to privacy, as we conceive it, is an expression of the sanctity of individual free choice and self-determination as fundamental constituents of life. The value of life as so perceived is lessened not by a decision to refuse treatment, but by the failure to allow a competent human being the right of choice."

Over time, this doctrine was extended past end-of-life decision-making to other types of medical treatment. The role of the guardian in Massachusetts is to carry out the medical wishes of the incapacitated person to the extent they are known; and after that do one's best to infer what they might be. For certain types of treatment, a judge must weigh in.

Next Post -- the present problem with ensuring the substituted judgment standard is used.

Come here me this coming Thursday at Avery Crossing, Needham

2012-01-17T22:11:00.000-05:00

I'll be speaking on "Planning for the Cost of Long-Term Care" this coming Thursday, January 19 at 2:30 PM at Avery Crossing, an assisted living facility located at 110 West Street (cross street is Highland Avenue) in Needham. I hope to see you there!

Property Tax Abatement Applications Due February 1

2012-01-09T14:17:00.003-05:00

If you think your property is worth significantly less than your city or town's property tax assessor does, consider filing for an abatement. You can pick up an application at the assessor's office. You will need to complete the application and provide a professional opinion about the value of the property, preferably from a licensed appraiser or a realtor. All applications must be filed no later than February 1. You will have to give the municipality access to your home so it can conduct its own assessment. If you are successful, you'll be able to save possibly hundreds on your property tax bill. It may be worth the effort!

Tips on financial management if you're laid off and near retirement

2012-01-07T10:22:00.001-05:00

Here's a link to an excellent article in today's New York Times. I cannot urge you strongly enough to consult a financial planner if you're in the unfortunate position of being laid off just as retirement is around the corner. You'll need some professional guidance to help make sure that you can stretch your funds as much as possible.

New Year's Resolution -- Have "The Talk" With Your Parents

2012-01-01T09:15:00.001-05:00

Happy New Year! May you and your family enjoy health, happiness, and comfort.

Here are some good tips courtesy of the LA Times for opening up a difficult conversation with your folks. If you don't have a handle on their basic financial information, you need to get one -- tactfully.

The Five: How to chat up parents on their finances

National Pill Take-Back Day this Saturday, Oct. 29

2011-10-25T10:48:00.000-04:00

One of the biggest headaches I see is going into a client's home and seeing numerous half-empty (or even barely touched) bottles of unused and unneeded prescription medication. You probably have some of these in your house -- the bottles which you can't bring yourself to throw away "just in case" you need them, even though the expiration date was five years ago.

For many years, we've been told to flush this stuff down the toilet. The resulting problem is that we're now all drinking minute quantities of antibiotics, Viagra, Percocet, and who-knows-what-else with every glass of water. It's not healthy for us and it's certainly not healthy of the environment. But you don't want this stuff just hanging around the house -- the risk of accidental poisoning and overdose is just too great.

So, this Saturday, October 29, from 10 AM to 2 PM is your chance to get rid of all this stuff. The Drug Enforcement Administration has a searchable list of locations where you can take your old drugs. Many police stations and pharmacies are participating.

Besides, don't you need to clean your medicine cabinets anyway?

Another area of estate planning -- frequent flyer miles and credit card perks

2011-10-22T14:05:00.000-04:00

Well, you can't take them with you.... why not make sure that your frequent flyer miles and credit card perks benefit someone who can use them? Forbes Magazine has a nifty article about how to transfer those miles -- assuming the airline's program lets you.

To see what you need to do, you and your estate planner need to carefully review the small print in the program's manual and decide what may work best given the rules and your plans for future usage. Depending on what's allowed, you might wish to make lifetime transfers, add people to your account and/or leave them by designation in your Will. Your power of attorney may need to have language which specifically directs transfers if you're incapacitated.

Keep in mind that there is usually a charge to redeem or transfer these benefits, so you'll want to expressly authorize your attorney-in-fact or executor to use your cash for that purpose.

Good News -- Sort of -- for Social Security Recipients

2011-10-19T01:23:00.002-04:00

For the first time in three years, there will be a cost-of-living increase in checks issued by the Social Security Administration. It is expected that the agency will announce a 3.5% raise in payments to seniors.

The bad news? A good chunk of this raise is likely to be offset by a jump in the Medicare Part B premium for roughly 75% or so of Medicare beneficiaries who are not low-income"dual eligibles" or high-income beneficiaries that already pay an additional premium.

A good explanation of the more complex aspect of this issue can be found here.

Consumer Reports on do-it-yourself wills

2011-09-24T20:28:00.001-04:00

The July issue of Consumer Reports had an interesting article (available on-line) on DIY will-drafting software, specifically, Quicken WillMaker, LegalZoom and Rocket Lawyer. The researchers created three different estate planning scenarios -- nuclear family, blended family with a special needs child and single with a life partner-- then plugged the facts into the software (to the extent that the software allowed them to do so). The resulting documents were then reviewed by Prof. Gerry Beyer, one of the top trust and estates teachers in the country. The best will, which was produced by WillMaker for a nuclear family, was considered good overall, but the software also provided legally incorrect information about whether yet-unborn grandchildren could inherit. Otherwise, the results were adequate at best, and in at least one case, produced a will that was, in Prof. Beyer's words, "a gold mine for probate litigators."

What's the takeaway? That these programs may be cheaper than a lawyer, but they are inadequate for all but the simplest situations. They won't catch the nuances and problems which an experienced estate planning attorney will identify. Last, the documents produced can result in some very unintended, unpleasant and likely expensive consequences that won't be felt until after you are dead

First it was Medicaid.... now Medicare

2011-09-12T22:19:00.001-04:00

Bernie Krooks is one of the smartest and most far-sighted elder law attorneys out there. When he says that Medicare is on the chopping block, I believe it. Delayed eligibility, increased premiums, means-testing -- it's coming -- but will the sacrifice be truly shared by those who can afford it most? Or will we continue to tax capital gains well below the rates for earned income?

What's on your mind?

2011-09-08T15:23:00.002-04:00

I'd love to hear about items and ideas you'd like to see posted on this blog. Please respond to this post or send an e-mail to me at sgolden@goldenlawcenter.com

Massachusetts fails to support home care for frail seniors -- this is a suprise?

2011-09-08T13:43:00.002-04:00

According to a study from the AARP, Massachusetts ranks 40th out of all the states in funds expended to support low-income frail elders in their own homes instead of being placed in nursing homes. According to today's Boston Globe, "if Massachusetts improved its performance to the level of the highest performing state, Minnesota, at least 3,945 nursing home residents with minimum health care needs would instead be able to receive care in their communities." At the same time, Massachusetts ranks the sixth most expensive place in the country for the cost of privately-paid skilled nursing care.

Although the Patrick administration says that it wants to work towards keeping more elders in the community, MassHealth is openly hostile to allowing parents to pay their children for care, and there is precious little support offered to family caregivers. The bill I testified about last May to give elders the clear legal right to pay their children remains stuck in committee. Further, the state makes it unnecessarily costly to deliver many routine health care services that would allow elders to stay home. Unlike the states that scored the highest for providing home care, Massachusetts law forces families to either hire a registered nurse to change a feeding tube or give a routine injection (like insulin) or do the job themselves, instead of hiring less expensive trained home health aides as is done in states with the highest percentage of frail elders at home.

Unless the public pressures both the Patrick administration and the legislature to improve the delivery and accessibility of community-based care, movement towards such services will remain painfully slow.

Emergency planning at Mom's nursing home

2011-08-27T14:22:00.003-04:00

NYC Mayor Bloomberg ordered evacuation of all hospitals and nursing homes in low-lying areas as of 8AM yesterday due to the oncoming hurricane. It's a good opportunity to consider whether you've asked the director of the nursing home or assisted living facility where your parent is about the facility's plans in case of an emergency. Emergency planning is critical because most frail elders are not going to be able to get very far on their own.

Is the facility located in a flood zone? Are there back-up generators in place? How many hours can they run? who is identified as essential personnel? When was the last time an evacuation drill happened? Has another one been scheduled? If residents need to be evacuated, where do they go? Can you get a copy of the written plan? These and other questions are essential to making sure your elders get the best care.

There's frugal, and then there's self-neglect

2011-08-17T18:26:00.004-04:00

Fiscal prudence is all well and good for elders -- but how do you deal with a parent who simply will not spend money on themselves, even where an objective observer would see that funds are available and the expenditure is needed for the elder's health and safety. It's a common discussion I have with the children of clients -- Mom has the money in the bank, she needs repairs made on the house or to hire a home health aide for a few hours of help a day, but she weighs spending every penny and is depriving herself. However, she doesn't hesitate to assume that you'll take care of things, even though you work full-time and have a family of your own.

This is an undoubtedly difficult conversation. As long as your parents are legally competent, they have the right to exercise poor judgment. You have to decide whether you want to allow them to "crash and burn" or to help when you know that your parents are more than capable of hiring the help they need and you don't have the time or energy to take care of everything.

Where do you draw the line?

Medicare Open Enrollment Period Starts October 15!

2011-08-17T10:46:00.004-04:00

Medicare has announced that its annual Open Enrollment Period will begin October 15, and run through December 7. This is the time to review your Medicare health and drug benefits and make any changes which may be needed.

If you're a Massachusetts resident, you can get free help reviewing your coverage from trained counselors through the SHINE (Serving the Health Information Needs of Elders) Program. Contact your local Council on Aging or 1-800-AGE-INFO (1-800-243-4636, press 3) for information about when the SHINE counselor will be on site or to leave a message for a SHINE counselor to call you.

In a second marriage? Then you REALLY need an estate plan.

2011-07-14T22:02:00.006-04:00

More people than not die without having ever making a will. The reasons vary -- a belief that estate planning costs too much, that somehow their assets will be divided "fairly," that they don't own enough to need an estate plan, etc., etc.

These people have done a form of estate planning -- they just don't realize it. They've unwittingly chosen to fall back on the intestacy statute, which determines distributions of assets if someone dies without making a will. If you are in a second marriage, this can be a really bad choice.

Under current Massachusetts law, if you are married and have kids and die, one-half of your estate would go to your widow(er) and the other half would be divided between your kids. As of January 2, 2012, this law will change. If you die married and have children after that date, EVERYTHING will go to your spouse.

Now, that may be a fine arrangement under many circumstances, but what if you are in a second marriage? Your children from Marriage #1 will probably be none too happy about your unintentionally disinheriting them.

Then there's the problem of whether you've updated the beneficiary designations on your life insurance policies and retirement plans. Spouse #2 can receive an unpleasant surprise after your death when she finds out that you never got around to removing Spouse #1 as a beneficiary of those plans. Under Massachusetts law, Spouse #2 will be out of luck, because the beneficiary designations in place as of your death govern.

A proper estate plan can make sure that both your spouse and the children from the first marriage are all provided for. You can think about having a trust which pays income to your spouse for life, and then leaves the assets to your children. If you name a neutral party as trustee, you will reduce the potential friction that can come as a result of putting Spouse #2 in charge of what will be your children's inheritance. Your attorney will also discuss updating your beneficiary designations, and can even complete the paperwork for you.

So, if you're in a second marriage, give us a call at 781-433-8665 and take the first step to make sure that your second spouse and your children will all be properly looked after.

Median annual cost of a nursing home in US is now $77,745

2011-06-09T15:42:00.003-04:00

According to a study issued by Genworth Financial, nursing homes in the US have increased their costs by an average of 3.4%. This study was based on a survey of over 15,000 providers taken in the first three months of this year.

You won't find a nursing home in the Boston area charging that low a rate. Most facilities I deal with charge privately-paying residents around $120,000 to $140,000 per year for a shared room. With these kind of costs, it just makes sense to make plans for the cost of long-term care, even if you think you'll never need it.

Elimination of the MassHealth bed hold -- not even penny-wise

2011-06-04T18:12:00.002-04:00

Let's say that your mother has been in a nursing home for the past three years which is paid for with MassHealth benefits. She may be demented, but she is familiar with the staff and has a comfortable routine which reduces her anxiety. The staff knows your mother and her idiosyncrasies, what things agitate her and how to calm her down. She gets sick and is sent to the hospital for several days.

Will she still have her bed when she gets back? Maybe not.

For many years, the Legislature had provided funding so that MassHealth would pay to keep Mom's bed free for her for up to ten days -- what is called the "bed hold." However, the State Senate decided, in a 12-25 vote, that the state could not afford to keep this policy going. There was a promise to revisit the policy when things get better.

So, what's going to happen? The nursing home will have the right to discharge Mom and tell you to pick up her things. If it does , itwill be under no obligation to readmit her, and can fill her bed with someone else. When Mom is well enough to leave the hospital, she may end up in a different facility.

Persons suffering from dementia need all the routine they can get. For many persons with advanced dementia, any move can be frightening, disorienting and distressing -- they've lost their home and they can't process why. Killing the funding which makes a return home possible is simply cruel.

This change will also make it easier for nursing homes to dump a difficult resident by finding a reason to hospitalize him for a "medication adjustment," then discharging them and letting the resident become someone else's problem.

So what can you do? If you've set up a MassHealth-approved pooled trust account to save some of Mom's assets, the trustee can pay to hold the bed open. (An elder law attorney will tell you about this option, but the person who the nursing home may recommend to prepare the MassHealth application probably won't.) Or you may need to use your own money to pay for the bed. If so, negotiate with the nursing home to pay something close to the rate that MassHealth would charge, not the private-pay rate.

You should also let your state representative and senator know that it's unfair to balance the budget on the backs of the most vulnerable and frail elders, and to make it a priority to reinstate the bed hold funding in next year's budget.

Memorial Day thoughts -- Do you know who your veterans service agent is?

2011-05-28T14:09:00.004-04:00

It's Memorial Day weekend -- a time to remember the needs of our vets and their families.

Unfortunately, our state and local governments do a pretty mediocre job of letting veterans and their families know about a service funded by the Commonwealth -- the veteran's agent. Every city and town in the state has an agent assigned to it. The agent's job is to assist veterans and their families (including surviving spouses and disabled children) identify appropriate Veterans Administration benefits and state services for veterans and apply for them. This service is free.

To find out more, click here or call your city or town hall and ask for the veterans agent.

Time for the Second Annual Get-Your-Graduate-to-Sign-A-Power-of-Attorney Lecture

2011-05-18T22:28:00.002-04:00

Those of you who were reading my blog a year ago.... go have a cup of tea.

The rest of you.... pay attention.

There's a good chance you know a kid who just turned or is about to turn 18. You may be attending her high school graduation in a few weeks. Guess what... that kid is or is about to become a legal adult. That means Mom and Dad have NO legal right to access her financial information, school records, or talk to her doctor.

So? You may shrug.

Well, what if there's an emergency? What if Suzy is involved in a car crash and gets seriously injured? Who will have the right to deal with the auto insurer? Medical insurance? Sue the other driver? Tell the college that she'll need to take a leave of absence? Unless Suzy has signed a durable power of attorney, a health care proxy, and a medical information (or HIPAA) release... no one. If Suzy's injuries leave her in a coma, the hospital may not listen to the parents unless there's a health care proxy in place -- forcing them to go to court to seek a guardianship.

Or... what if Bobby is still in school and receiving special education services? Under federal law, the parent's right to advocate for Bobby and approve the education plan dies at age 18 unless Bobby signs a power of attorney authorizing the parent to engage in such matters, Bobby is legally on his own and at a distinct disadvantage in negotiating for his schooling.

Most attorneys will prepare these documents for a modest fee. Just make sure that it gets done.

Overuse of antipsychotics in nursing homes -- the feds have caught on

2011-05-10T21:42:00.002-04:00

According to an article in today's New York Times, an audit by the Department of Health and Human Services found that "more than half of the antipsychotics paid for by the federal Medicare program in the first half of 2007 were “erroneous,” the audit found, costing the program $116 million for those six months." These drugs are commonly used to treat the agitation caused by dementia -- sometimes to good effect, sometimes not. Unfortunately, some nursing homes use them instead of giving their staff adequate training in behavioral interventions. In some cases, use of antipsychotics have been linked to illegal kickbacks to drug companies.

You can read the HHS audit here.

Family Caregiver Contracts -- Massachusetts House Bill H01097

2011-05-09T11:37:00.003-04:00

I am excited to be testifying before the Massachusetts Legislature's Joint Committee on Elder Affairs this coming Wednesday, May 11, concerning House Bill H01097. This bill, if enacted into law, would codify the rights of elders and persons with disabilities to pay their family members for providing personal care and management. MassHealth has repeatedly opposed this concept as being a "giveaway" which increases taxpayer costs, despite federal law and agency policy mandating that services be provided in the community where possible, rather than in nursing homes. (The current version of the bill can be viewed here.) No one wants to end up in a nursing home. By paying children to provide care, elders can stay home longer, and in the process save the taxpayers money by deferring when the elder will need to apply for MassHealth long-term care coverage. It just takes longer to use up one's assets when you are paying a child $15 an hour plus reasonable room and board than paying a nursing home $350 a day.

Please contact your legislator and the members of the Joint Committee this week and encourage them to support this important legislation.

Don't be too quick to shred!

2011-04-26T15:13:00.006-04:00

There's been a good discussion on the National Academy of Elder Law Attorneys list serve in response to a USA Today article on shredding documents. The thesis of this article, like so many others, is that shredding "unnecessary" documents after tax season is critical to prevent identity theft. So, the article suggests destroying canceled checks once the bank statements have been reconciled, holding on to records for investment transactions to show the purchase or sale price for no more than three years after the transaction, etc.

There's just one problem with this thesis: taxes aren't the only reason why one should hold onto records. Before you purge, think ahead.

MassHealth applications for long-term care services require the applicant to produce five years of records., including tax returns, invoices for purchases in excess of $500, bank statements, canceled checks, credit card statements, etc., etc. If this information is not supplied with the application, the application will be rejected. I've lost track of the number of times I've asked clients to produce documents needed for a MassHealth application only to be told that they've been lost or destroyed. Then there's the problem of getting duplicates of canceled checks or old bank statements. We've had one small bank tell us that they didn't issue copies of statements if the statement was at least three years old. If there is a question about whether a transaction may have been a gift, we need to supply documentation showing what was purchased so that we can argue that there was no gift made or intended. For these reasons, I recommend that seniors hold on to five full years of financial records, preferably set up in chronological order.

There are other older documents that need to be retained as well. Veterans and their surviving spouses need discharge papers to apply for Veterans Administration benefits, such as Aid and Attendance. Invoices and canceled checks for improvements to one's home are needed at the time of sale, so that capital gains tax liabilities can be properly calculated.

Children of boomers -- don't count on your inheritance

2011-04-19T21:15:00.002-04:00

Here's an interesting story -- a survey by a unit of Bank of America of 457 baby boomers (born between 1945 and 1964) with at least $3 million just aren't very interested in leaving an estate for their children. Only 49% felt it was important to leave an inheritance. The rest planned to spend their savings on themselves.

Part of the reluctance to pass along their money may be that the survey respondents -– many of whom described themselves as self-made -– don’t trust their heirs with it.

Barely one-third of those surveyed expressed confidence that their children would be able to “handle” an inheritance. And 45% doubt their progeny will have sufficient financial maturity until they’re at least 35 years old.

Granted, it's a small sample, and certainly the vast majority of Americans don't have $3 million to leave to anyone. Still, I wonder if this is indicative of a real generational shift, or will the survey participants change their minds as they and their children age?

AARP v. HUD -- an update

2011-04-07T15:36:00.004-04:00

A follow-up to my post of March 9, in which I discussed a law suit brought by AARP against the Department of Housing and Urban Development concerning the agency's policies about reverse mortgages. As I noted, HUD had instituted a policy in 2008 which forced surviving spouses who inherited homes but were not co-borrowers on a reverse mortgage into selling their homes if the house was "upside down" and worth less than the amount borrowed, instead of allowing them to buy out the lender for the amount of the balance, despite the fact that third parties could do so.

As of April 4, HUD published a notice reversing this policy. As a result, the borrower and the borrower's estate is protected no matter who pays off the lender even if that homebuyer is a surviving spouse, family member or relative. This is great news for borrowers and their families, and levels the playing field.

Child turning 18? Be prepared - Managing Your Money

2011-03-29T13:30:00.000-04:00

Child turning 18? Be prepared - Managing Your Money

Once your child turns 18, you lose all legal control over their affairs. If there was an emergency, you would have no right to access their educational, medical or financial information without their express written permission. For a modest fee, parents and their young adult children can purchase the peace of mind that comes with making sure that the right legal documents are in place for just such an unforeseen occasion.

Pet Trusts in Massachusetts

2011-03-25T09:53:00.005-04:00

For those who share their lives with pets, the human-animal bond is life-long. Unfortunately, thousands of pets each year are surrendered to animal shelters because there plan for them or no funds available for their care. As of April 7, 2011, Massachusetts residents will be able to make sure that their furry companions will have long-term financial protection.

Under the terms of the new Pet Trust law, "pet parents" can create and fund a trust for the benefit of Fluffy or Fido (or an entire menagerie) during lifetime. Unless the trust says otherwise, the trust lasts until the last of the animals named in the document passes away. The trustee must use the assets for the sole benefit of the animals, although the trustee can pay herself for administrative expenses and reasonable trustee fees. The trust creator can transfer custody of the pet to the trustee during the creator's lifetime.

The law anticipates a "Leona Helmsley" situation, in which a trust is given vastly more funds than an animal will actually need. Thus, "a court may reduce the amount of property held by the trust if it that amount substantially exceeds the amount required for the intended use and the court finds that there will be no substantial adverse impact in the care, maintenance, health, or appearance of the animal or animals."

If the trust fund is reduced or the trust terminates, the remaining funds must be distributed as directed in the trust instrument. If there is no direction, the money goes back to the trust creator, if living. If the creator is dead and there's no direction, then disposition of the remaining assets will depend on whether the trust was created in a will -- if it was, the funds will be transferred according to the residuary clause in the will. Otherwise, the funds will pass according to the Massachusetts intestacy law.

A pet trust is critical, but you still must designate who will have care and custody of your furry friend in the event of your incapacity or death. I recommend that you find someone who will agree to take in Tabby or Tuffy while you are well, then provide written directions to that person, your executor and attorney-in-fact and the pet trustee identifying who will care for the pet, the contact information for the pet's veterinarian, information about the pet's medical needs, behavioral issues (if any) and anything else which you think someone would need to know about your pet.

Denial

2011-03-22T15:32:00.006-04:00

Incapacity and death are scary prospects for most of us. As an elder law attorney, I see the consequences of failing to cope with the fear. Not facing your fears and meeting with an elder law or estate planning attorney can result in a lot of stress for your family -- and a lot of expenses for you and your family when I get hired to clean up the legal and financial mess that didn't have to happen.

If you're incapacitated and don't have a durable power of attorney, someone will need to go to court for a conservatorship appointment in order to manage your finances. This can get pricey. Not only will there be legal fees and court costs, but the would-be conservator will need to get a surety bond. Depending on the amount of assets you have (aside from real estate), the cost of a surety bond can run from several hundred to several thousand dollars -- every year. If your house needs to be sold or a mortgage obtained, there will be legal fees and court costs for that. If a trust needs to be set up to help manage your assets -- yep, more legal fees and costs.

And let's not forget the amount of time it can take from when the paperwork is filed to the day a court order is actually issued -- often 8 to 10 weeks or more.

All this lost time, money and work... it's all avoidable with a durable power of attorney.

Today's Annals in International Estate Administration

2011-03-14T20:21:00.003-04:00

This is why I love the kind of work I do.... you can't make this stuff up.

In a small town in central Italy, Luciano Visocchi grew up with stories about Boston, where his mother and aunt had lived for many years.

When Visocchi died this past summer at the age of 62, he honored the city his family loved. In his last will and testament, he named Boston as the heir to his estate, which an Italian newspaper estimated at $700,000 plus a house and other property.

Good news, right? But there’s a catch.

“The City of Boston, MA, USA, is obliged to look after the old dogs Argus and Jak,’’ Visocchi’s will decrees, according to an English translation. “To feed the cat Rossina, easily recognizable from her great size, as well as the cats: Giacchino, Rossino, Pasquale, Francesco, and others as well....’’

Reverse mortgages -- trouble for surviving spouses??

2011-03-09T21:31:00.003-05:00

If you're married and got a reverse mortgage, check your paperwork. Did your spouse also sign the loan paperwork?

If the answer to the question is "no," you may have a problem if your spouse outlives you and your house is worth less than the loan balance.

HUD sets the rules for nearly all reverse mortgages issued in the US. One of the attractions of a reverse mortgage is supposed to be that even if your loan is for more than the value of the house, the most the lender can collect in a foreclosure is the proceeds from the sale of the house. When the borrower dies, the survivor has twelve months to pay off the loan -- but every borrower I have worked with is told that the payoff is not supposed to be for more than the value of the house. Further, there are HUD rules which are supposed to protect the surviving spouse living in the home even if that spouse is not on the mortgage, so that the potential for forced sale is abated until the surviving spouse either permanently moves out or dies.

Somewhere along the line, the rules got changed.

Now, AARP has brought a class-action suit against HUD alleging that the changes in the rules allow underwater homes with reverse mortgages to be sold to strangers in arm’s-length transactions for less than the full mortgage balance, but require some spouses or heirs who were not co-signers on the loan to pay the full amount. Not only that, Finally, the suit says HUD is ignoring its own provisions against displacing a surviving spouse.

Here's a quote from the New York Times article illustrating the problem:

One plaintiff, Delores Jeanne Moore of Covington, Ind., was not on the reverse mortgage because her husband had owned the house before they married. He died in 2008. Under the new HUD rules, the suit says, if Mrs. Moore wants to keep the house, she must pay the balance of the loan, $91,000. But a third-party buyer could get the house for 95 percent of its appraised value, or about $81,000.

What's the moral here? Reverse mortgages can be a real lifesaver, especially if you're a senior facing foreclosure on a conventional mortgage which is "underwater." But you MUST read the fine print in the loan. Weigh carefully whether both spouses should be on the loan. And consult with an attorney who is experienced handling these deals to be sure you know what you're getting yourself into.

For further discussion on this important topic, go here.

Listen to me LIVE March 10 at 10AM EST on powers of attorney

2011-03-07T17:12:00.003-05:00

I will be the guest of Christine Miller, owner of Hearts and Homes for Seniors this Thursday, March 10 at 10:00 AM EST, to talk about the importance of durable powers of attorney as a part of your estate plan. I hope you all listen in!

http://www.blogtalkradio.com/christine-miller

The hidden dangers of joint bank accounts

2011-03-06T13:56:00.006-05:00

Putting your child on your bank account is easy, right? The two of you go to a bank, sign a few forms, and now your child can help you pay the bills or monitor your spending activities.

No worries, right?

Wrong.

Let's put aside the scary -- but real -- possibility that your child might take the opportunity to raid your account. There are other issues which many elders do not think about when setting up a joint bank account which need to be considered.

Under Massachusetts law, the act of adding someone to your bank account is considered to be a gift the moment the two owners sign the bank's paperwork. That means that the money is considered to belong 100% to each owner. Each owner has the right to control the asset and use it for whatever purpose he may wish.

So, a jointly owned asset is always subject to attack by the creditors of either owner. If your child is sued for some reason, your bank account could be tied up and possibly drained by someone with whom you have no legal relationship. You would be forced to go to court and hope that you can prove that the money was really yours.

Second, ownership of the account will pass to your child outside of probate. Maybe this isn't really an issue -- for example, if your child is an only child, or you REALLY want to be sure that the money goes to that child at death. But if you have more than one child and you intend your estate to be evenly divided, the fact that the account is not included with the rest of your assets may result in an uneven distribution of your assets.

In other words, let's say you have $50,000 in your joint bank account with your daughter, Sarah. Your Will splits your estate evenly between Sarah and your son, David. Since the estate passing through the will does not include jointly held accounts, that means that Sarah would get $50,000 more than David as a result of your death.

If access by your child's creditors or unequal distribution of your assets isn't what you had in mind for your money, make sure that your child is listed on the bank account as a co-signatory, not a co-owner. If your child has signatory authority, then he can access your account, but does not have ownership interest. You need to be very clear with the bank that you do not want your child to own the account. You will have an easier time defending the account from your child's creditors, because she will not be an owner and will not have the right to use the funds for herself. At your death, the account will be part of your probate estate.

Does my mom’s power of attorney allow me to make gifts?

2011-02-26T21:54:00.004-05:00

Anyone appointed under a durable power of attorney (DPOA) to act as someone’s attorney-in-fact (AIF) needs to read the document -- carefully. You might think that this is obvious, but it doesn’t happen nearly as much as it should. Failure to read and understand the document is not a good excuse if you, as the AIF, should get sued by some very unhappy relative or Elder Protective Services complains that your failure to follow instructions hurt your mom.

One of the biggest traps for the AIF is power—or lack thereof—to make gifts, either to others or to the AIF herself. As a matter of law, if the DPOA does not expressly say you can make a gift, you can’t make it. If it puts limits on who can receive a gift or on the amount to be given away, then those limits must be honored. If the DPOA says you can only make gifts of equal amounts to all of the children, then you can’t favor one child over another. And if it doesn’t say that you can make a gift to yourself from your mom's funds, then doing so is unlawful self-dealing.

So, what happens if you ignore the instructions in the DPOA? If you're lucky, your mom (if competent) will fire you. Or you can get sued. A judge can force you to give up your position. And you could be ordered to repay your mom the money you wrongly gave away from your own funds.

If you are the AIF, you should not hesitate to consult with an estate planning or elder law attorney to review what the DPOA authorizes you to do.

Taking away the keys.

2011-02-17T21:38:00.006-05:00

I’ve had clients who should not have been driving due to clear signs of dementia, substantially diminished mobility, or obviously impaired visual-spatial skills. Frankly, the idea of being on the road with As their attorney, I can suggest that they consider the liability they face if they cause an accident, but I cannot ethically rat them out without breaching the attorney-client relationship. I can only pray that their kids step up and intervene.

Probably one of the toughest conversations adult children have with their parents is about when to stop driving.It’s important for adult children who hold powers of attorney for their parents to know that they are not legally responsible for any accidents or injuries which may occur as a result of their parents’ impaired driving. However, that fact does not compensate for the pain and guilt felt if a parent who should not be driving injures another person or themselves.

Telling all this to a parent who is already frightened of losing independence and dignity and may be in denial about the degree of impairment may be difficult and possibly unproductive. You need to be a compassionate and patient listener. You also need to be ready to present transportation alternatives (the social worker at your local Council on Aging can provide information about such services). You may need to have this conversation a number of times before it sinks in. Hartford Insurance has developed an on-line video to coach you about these discussions.

If a direct conversation is not possible, you can file a written request for a medical evaluation with the Registry of Motor Vehicles. The Registry will not tell the elder over the phone who filed the request; however, Massachusetts open records laws require the agency to release the record if the elder asks in writing.

For more information

http://www.mass.gov/rmv/seniors/index.htm

http://www.nhtsa.gov/people/injury/olddrive/UnderstandOlderDrivers/

Teddy

2009-08-26T10:01:00.002-04:00

Every senior, every parent of a child with a disability, every advocate for seniors and every elder law attorney should stop today and say a prayer of gratitude for the life and advocacy of the man I've been proud to call my senator. He was the author of over 300 bills and the critical sponsor of countless others, whose topics included but are not limited to:

Medicare
S-Chip -- expanding health insurance coverage for children of the working poor
Medicaid
Meals on Wheels
The Ryan White AIDS Act
The Americans with Disabilities Act
Funding for research on cancer, mental health, developmental disabilities, stem cell research, Alzheimer's,
The Family and Medical Leave Act
The Older Americans Act

not to mention the countless number of actions he has taken on behalf of seniors and people with disabilities in Massachusetts. His constituent service work was legendary, and every advocate in Massachusetts knew that calling his office would result in action.

Teddy... you will be deeply missed.

Does your assisted living facility have an evacuation plan?

2009-08-19T21:16:00.005-04:00

Now here's good thinking -- the head of a retirement community where I practice has started up a mutual assistance program for assisted living facilities and nursing homes. 170 Massachusetts facilities have signed on to help each other take in residents and share resources in the event of fire, prolonged energy outage, flood, etc., etc. This idea can keep a lot of frail elders out of emergency rooms and Red Cross shelters during crises.

So, when you are looking for a facility for yourself or a loved one, ask the admissions director whether it belongs to the Massachusetts Long-Term Care Mutual Assistance Association -- and if they don't, whether the facility plans on doing so by the time your loved one moves in. If the answer to both questions is "no," consider going elsewhere.

On Social Security? No raise for you!

2009-08-18T10:14:00.003-04:00

Ouch.... For the first time in over 30 years, Social Security will NOT be giving retirees a cost-of-living increase (COLA) for 2010. Most beneficiaries will not see a change in their Medicare Part B premiums; however, for about one-quarter of all beneficiaries, Medicare Part B premiums -- normally automatically deducted from your Social Security check -- will increase from the present $96.40 per month to an estimated $119 per month. It is also highly likely that Medicare D premiums for prescription drug coverage will go up for everyone.

Well, the scare tactics work in the short term (updated!).

2009-08-13T21:04:00.005-04:00

The same folks who rammed the Schiavo legislation through in 2005 have tanked the proposal to have Medicare pay for a voluntary conversation about end-of-life options, now claiming that government shouldn't be involved in end-of-life decision making. Chuck Grassley, the ranking member of the Senate Finance Committee said yesterday

"I think the best thing to do is if you want people to think about the end of life, number one, Jesus Christ is the place to start, and after that, in the physical life, as opposed to your eternal life, it ought to be done within the family and considered a religious and ethical issue and not something that politicians deal with," he said.

This afternoon, the Senate Finance Committee has announced that Medicare funding to discuss advance directives will not be included in any package. However, the sharp-eyed Amy Sullivan notes at Time's Swampland blog that

Remember the 2003 Medicare prescription drug bill, the one that passed with the votes of 204 GOP House members and 42 GOP Senators? Anyone want to guess what it provided funding for? Did you say counseling for end-of-life issues and care? Ding ding ding!!
Let's go to the bill text, shall we? "The covered services are: evaluating the beneficiary's need for pain and symptom management, including the individual's need for hospice care; counseling the beneficiary with respect to end-of-life issues and care options, and advising the beneficiary regarding advanced care planning." The only difference between the 2003 provision and the infamous Section 1233 that threatens the very future and moral sanctity of the Republic is that the first applied only to terminally ill patients. Section 1233 would expand funding so that people could voluntarily receive counseling before they become terminally ill.

And guess who voted for this measure? Yup -- Senator Grassley.

Setting aside my feelings about this truly magnificent degree of hypocrisy for the moment, I will try to look on the bright side -- seldom in my fifteen years of practice have I heard so much conversation at the national level about living wills, health care proxies and advanced directives. If the shouting encourages more people to contact attorneys to make sure that they have legally appropriate documents in place, perhaps something good will come out of it. I hope some people have learned that if they don't have advance directives and a health care proxy in place, the default position for doctors is to do everything to keep someone alive, no matter what. And perhaps if the issue has become so politically toxic that it must be removed, some good things will be enacted into law.

Maybe this issue will be revisited in the next legislative session, when the flame-throwing has died down.

Text of the advance directives section of the health care reform act

2009-08-08T14:09:00.003-04:00

The text of H.R. 3200, section 1233 can be found here.

We need to take the issue back from those who have hijacked it in order to torpedo health care reform. Many elder law attorneys have advanced directives tailored for Catholics, Christian Scientists, Orthodox Jews, etc., etc., which reflect a given faith's particular teachings. The bill simply encourages these voluntary discussions by ensuring that Medicare will pay for them every five years.

When the truth doesn't serve your goals, scare them to death.

2009-08-01T15:54:00.006-04:00

Section 1233 of the House health care reform bill provides Medicare funding so doctors can be paid for a voluntary conversation with elders, who can be given "an explanation by the practitioner of the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title."

Now, you may not agree with the health care reform bills. You may not even agree that it's needed or desirable. But are the national Republicans and their pals in talk radio so intellectually and morally bankrupt that they've resorting to this reprehensible garbage in an effort to kill health care reform?

But on right-leaning radio programs, religious e-mail lists and Internet blogs, the proposal has been described as "guiding you in how to die," "an ORDER from the Government to end your life," promoting "death care" and, in the words of antiabortion leader Randall Terry, an attempt to "kill Granny."

People need facts to make informed choices. Doctors and nurses are trained to present information about options for treatment in a manner which encourages patient autonomy. Whether the medical provider personally agrees or disagrees with your decision is not legally or ethically relevant. What is relevant is that the patient receives the data needed which in combination with one's own religious or moral viewpoint, will lead to an informed choice; and then have well-drafted advance directives which communicates that choice with treatment providers and loved ones included with your estate plan. Not only will you get the care that you want to have, but you make sure that your loved ones aren't forced to go to court to seek guardianship in order to authorize such care.

But then, what we're seeing is the opposite of intellectual honesty.

The attacks on talk radio began when Betsy McCaughey, who helped defeat President Bill Clinton's health-care overhaul 16 years ago, told former senator Fred D. Thompson (R-Tenn.) that mandatory counseling sessions with Medicare beneficiaries would "tell them how to end their life sooner" and would teach the elderly how to "decline nutrition . . . and cut your life short."

House Minority Leader John A. Boehner (R-Ohio) and Republican Policy Committee Chairman Thaddeus McCotter (Mich.) said they object to the idea because it "may start us down a treacherous path toward government-encouraged euthanasia."

Remember, these are many of the same people who rammed a measure through Congress endorsing the State of Florida's effort to keep Terri Schiavo alive, arguing that the legislature should interfere with the acts of her legal guardian and the courts because she didn't have a living will. So, by this shameless logic, paying doctors to have voluntary discussions with their patients about medical options and advance directives leads to earlier, state-sponsored deaths, but it's perfectly all right for legislators to interfere with the most painful discussion a family can have because there was nothing in writing to tell a doctor what to do.

Progress on promotion of advanced planning

2009-07-29T20:15:00.003-04:00

The American Bar Association's Commission on Law on Aging reports that the Secretary of the US Department of Health and Human Services has sent a comprehensive report to Congress entitled “Advance Directives and Advance Care Planning.” The report, requested by Congress in 2006, focuses on (1) the best ways to promote the use of advance directives and advance care planning among competent adults as a way to specify their wishes about end-of-life care; and (2) addressing the needs of persons with disabilities with respect to advance directives.

The report thoroughly reviews the literature on "every aspect of advance care planning, analyses of key ethical and legal issues, and a discussion of opportunities to enhance the effectiveness of advance care planning and advance directives. The report is particularly timely as health care reform is in the public policy forefront, and several bills are pending on the Hill regarding advance care planning and improving care near the end of life."

Charlie Sabatino, Esq., the head of the ABA's Commission (and someone I feel privileged to know) has written a comprehensive analysis of the legal and public policy issues. I look forward to reading Charlie's analysis.

Hear me live on Tuesday, 8/18 at 3PM!

2009-07-23T21:00:00.003-04:00

I'm pleased to announce that on Tuesday, August 18 at 3PM, I will be a guest on Money Matters Radio, streaming live at http://www.moneymattersradio.net/ and on air in Eastern Massachusetts on WBNW AM 1120, WESO 970 and WPLM AM 1390.

They're off to college! But can you help in case of emergency?

2009-07-21T07:55:00.004-04:00

Great post in one of the blogs at boston.com about an commonly-overlooked issue. A parent's ability to help their child with medical issues -- like acting as an advocate in the event of an illness -- ends when the child turns 18 unless the child has signed a health care proxy and HIPAA-compliant release for medical information. If these documents aren't signed and on file at home, with your kid's doctor and at the student health service, you may not be able to help your child get critical care in the event of a medical emergency.

Similarly, your child needs a durable power of attorney giving you legal authority to access her bank and credit card accounts and to make legal decisions. For example, if your child is seriously injured in an accident, you don't want to have to go to court for a conservatorship just to sue the idiot who ran the ran the red light! The DPOA will allow you to help when help is needed most.

Steve McNair -- a likely estate administration mess.

2009-07-19T18:53:00.011-04:00

Most readers know by now that Steve McNair, the former Tennessee Titans QB, was killed in a murder-suicide by a woman who was not his wife. McNair left no will. Hoo boy....Now his widow has mess that could make the Michael Jackson estate look like a piece of cake to administer by comparison.

During his football career, McNair earned over $75 million in NFL salary alone -- never mind the millions earned from endorsements, licenses for the use of his name and likeness, personal appearance fees, etc. He and his wife had two children. There are also two older (minor) children who may or may not be his, but for whom he was paying support.

According to The Tennesseean, since there was no will, under Tennessee law, 1/3d of the estate will go to his wife and the remaining share will be divided among his children. Mrs. McNair has stated that she does not know whether the two older children are McNair's biological children. You can bet that those boys' legal guardians have hired lawyers by now to protect their claims. You can also bet that Mrs. McNair's lawyers will demand proof of paternity before these children see a dime.

Then there's that pesky matter of failing to plan for federal estate taxation. That 2/3ds of the estate which doesn't go to the wife will be subject to a maximum 45% federal estate tax, since the value of the estate is over $3.5 million. If we assume that the estate was worth $50 million, and if 1/3d passes tax-free to the surviving spouse under TN law, then that's $33.34 million. Subtract the $3.5 million exemption for deaths in 2009, multiply by 45% for the tax bracket-- or $13.49 million in possible estate tax!

This could have all been avoided.

A good estate planning attorney would probably have set up the estate to postpone a significant portion of the estate taxes until after the death of the second spouse. There probably would have been an irrevocable life insurance trusts established so that an insurance policy would pay the millions of dollars which will be owed to the Federal government in estate taxes. He might have set up a charitable remainder trust, which would have created an annuity for the widow and then left the remaining funds to charity without any estate tax.

I can safely predict that a number of Tennessee lawyers and the IRS will make a lot of money off of this case because of a lack of any estate planning. I also expect that the court may order trusts created for the benefit of the children (once it determines how the 2/3ds of the estate get divided), as a judge will not like the idea of young children receiving millions of dollars without any professional supervision over the funds' use. Saddest of all, there are two (or four) children who will have to grow up without their father's love while almost certainly overhearing other family members arguing over his money.

Bankruptcy and your Social Security check

2009-07-17T08:00:00.004-04:00

Did you know that federal law protects your Social Security check from creditors -- but only if you make an effort to protect it? Massachusetts bankruptcy guru Walter Oney alerted me to an important decision from the bankruptcy court [Carpenter v. Ries (In re Carpenter), 2009 Bankr. LEXIS 1776 (B.A.P. 8th Cir. July 13, 2009)] which emphasizes this point.

In Carpenter, a Chapter 7 debtor was holding a cashier's check for a lump-sum retroactive award of SSDI benefits at the time he filed his petition. The BAP ruled that these funds did not become part of the bankruptcy estate at all because of section 407 of the Social Security Act (42 U.S.C. 407). This law states:

§ 407. Assignment; amendment of section

(a) The right of any person to any future payment under this title [42 USCS §§ 401 et seq.] shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title [42 USCS §§ 401 et seq.] shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

(b) No other provision of law, enacted before, on, or after the date of the enactment of this section [enacted April 20, 1983], may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

(c) Nothing in this section shall be construed to prohibit withholding taxes from any benefit under this title, if such withholding is done pursuant to a request made in accordance with section 3402(p)(1) of the Internal Revenue Code of 1986 [26 USCS § 3402(p)(1)] by the person entitled to such benefit or such person's representative payee.

Walter's note to one of my e-mail lists notes that

BAP decisions are not binding precedent, even within the circuit where they're rendered. However, this panel's analysis seems to me likely to be followed elsewhere.

The moral of this story ... is that clients should ALWAYS be advised to segregate social security benefits in dedicated bank accounts so they can easily trace them, and they should use other resources (to the extent possible) to pay expenses. These steps will minimize the client's exposure to debt collectors and bankruptcy trustees.

So -- if you receive payments from Social Security, whether they are for retirement or disability benefits or SSI, have those funds directly deposited into a checking or savings account. (If you're married or live with to another Social Security recipient, have your spouse or partner deposit his or her payment into a separate bank account). Put the rest of your money in other accounts. Make one of those accounts your "operating account" for household expenses. Then transfer funds from your dedicated Social Security account into your operating account as needed. (Setting up your accounts so that you can make the transfers on-line will make your life easier.) While these steps will mean some additional bookkeeping, it can save a lot of money down the road if you run into problems paying your bills and either face suit from a creditor or need to file bankruptcy.

Surviving spouses and inherited debt

2009-07-14T20:50:00.005-04:00

Please check out the link to an interview with me by Sally Herigstad, CPA, a columnist at www.creditcards.com about the rights and responsibilities of surviving spouses concerning the debts of the deceased spouse.

These responsibilities are dictated both by the terms of the contract and by assorted state and federal laws. For example, under Massachusetts law, the only debts which are solely in the name of the deceased spouse that the surviving spouse must cover are medical bills -- all the other debts are presumed to be the responsibility of the decedent's estate. This surprised Sally, a resident of the state of Washington, who told me that under her state's community property law, the survivor inherits all debts. I also noted that if the mortgage is solely in the dead spouse's name, a particular federal law called the Garn-St. Germain Act allows the surviving spouse to assume the mortgage if she inherits the house. Of course, debts which the couple entered into together live on, as do debts which the survivor voluntarily assumes.

Thus, it's important for surviving spouses to meet with an experienced probate attorney to review the decedent's bills -- at least in Massachusetts, there may be some debts that the survivor may not need to pay.

Problems with DIY Estate Planning, Part 1

2009-07-03T22:10:00.010-04:00

Plenty of folks think that a will is just a form -- you can buy a piece of software for less than $100, plug in names and addresses and -- poof! -- out comes a document that will take care of your loved ones after you're gone. I will be exploring why this kind of thinking is a gift to probate lawyers over the next few weeks.

First, all the language in a will means something. Sometimes the language that's missing means even more. If the will is a generic document which is missing language that's required under Massachusetts law to allow the executor to do or not do something, then there's usually not much which can be done to change the situation after the creator of the will dies. Massachusetts law doesn't allow wills to be "reformed," or corrected, after death, so everyone is stuck with a document that may have a big problem. So, a good estate planning lawyer makes sure that the will complies with state-specific procedural requirements.

Unfortunately, a will that you get off a piece of software which was drafted somewhere else and does not properly reflect Massachusetts law and our Probate Court rules can have unintended consequences. For example, the failure of a do-it-yourself will to specifically "waive sureties on the bond" -- something mentioned in nearly every Massachusetts will -- means that the executor may need to spend hundreds, sometimes thousands, of dollars buying an insurance policy as a condition of being appointed. Similarly, a will that doesn't waive the requirement to get a license to sell real estate adds more time and cost to estate administration. So, whatever money you might think you saved drafting your own will can easily be lost -- and then some -- after your death, because some lawyer in some other state who drafted the document didn't know Massachusetts law and practice. Not much of a bargain there.

Changes in Medicare regulations to help nursing home residents

2009-07-01T23:00:00.002-04:00

Every year, federal law requires nursing homes be inspected and graded on the standard of care they provide residents -- cleanliness, record keeping, food, etc., etc. However, until last month, there were no grades for actually making a nursing home feel more like, well, a home. These new standards are intended to force nursing homes to focus on reducing the institutionalization of residents. It will be a while before these changes in the survey requirements result in real change, but it's a step in the right direction.

To quote the press release --

The new guidance also calls on nursing homes to de-institutionalize their physical environments. The guidance highlights institutional practices that facilities should strive to eliminate including meals served on institutional trays and noise from overhead paging systems, alarms and large nursing stations.

A homelike environment is not achieved simply through enhancements to the physical environment, according to the new guidance. It concerns striving for person-centered care that emphasizes individualization, relationships, and a psychological environment that welcomes each resident and offers comfort....

The guidance also makes clear that residents have the right to choices concerning their schedules -consistent with their interests, assessments, and plans of care. Choice over schedules includes, but is not limited to, those matters that are important to the resident, such as daily waking, eating, bathing, and going to bed at night. The facility should gather this information in order to be proactive in assisting residents to fulfill their choices.

Don't take your passwords to the grave with you.

2009-06-15T20:56:00.006-04:00

There's a terrific post at Bankrate.com on a subject most folks don't think about when creating their estate plan -- who will know what your passwords are so they can access your accounts? There is now a service called Legacy Locker which will store them on-line for $30 per year. Whether that service is right for you may depend on how squeamish you feel storing your passwords somewhere out in the cosmos.

Of course, you could do things the old-fashioned way -- write down a list of all your passwords, along with a list of your accounts, life insurance policies, safe deposit boxes, etc., etc., and give them to your attorney or someone else you absolutely trust to safely store the information. If you do that, you and your lawyer should have an agreement describing the circumstances upon which that list will be released and the person(s) that it may be released to.

Estate Plan Messes -- Outdated Documents

2009-06-13T09:16:00.002-04:00

When was the last time you actually LOOKED at your Will? That's right -- the one stuck in the back of your filing cabinet, along with the receipts for stuff you bought in 1991. Are the kids who were then in kindergarten now out of the house and have babies of their own? Does it still name your brother -- the one who has since developed a drinking problem -- as the executor? If you have $1 million or more worth of combined real estate, investments, and other assets (and despite the recession, there are still folks who do), and you live in a state which still has a separate estate tax (like Massachusetts), does it have any provision for how the taxes might get paid?

I encourage my clients to take their wills out of the file for ten minutes every year or so and just look them over. If the situation hasn't changed, fine -- put them back. But if there are now children or grandchildren, or a change (for good or bad) in their financial lives or their health, or it's been five years or more since you and your lawyer have talked, then it's time to come in for an estate plan check-up. Maybe the Will just needs a small tweak, which can be done with a codicil -- an amendment to the Will. Maybe it's time for a new Will. But a few minutes of review and a possible update can save your estate thousands of dollars in the future, and give you peace of mind that your plan will work the way you intend.

Estate Plan Messes -- Naming the Wrong Fiduciaries

2009-06-11T20:45:00.004-04:00

A fiduciary is someone you've placed in a position of trust to act on your behalf. In estate planning, the fiduciaries are the executor (or personal representative) of your will, the trustee of your trust, the attorney-in-fact for your power of attorney, and your health care agent for your health care proxy.

Most of the time, my clients want to name one or more of their children as their fiduciary. They come in thinking that "Joe" should be a fiduciary because he is the oldest or the child holding the "most important" job or some other reason. I tell the client two important things. First, being a fiduciary is usually a thankless job -- and it can be a JOB. There is no honor or glory in running from one bank to another to close out accounts or paying the bills or getting a house cleaned out and sold. It takes time, energy and organizational skills. The client needs to be sure that the proposed fiduciary is cut out for the job.

The second thing I tell -- or ask -- the client is how well does Joe handle his own money? Does he have a drinking problem? Can he hold down a job? A good fiduciary needs to have good character. If Joe is not responsible in his own life, the client shouldn't assume that Joe will somehow be more careful with the client's affairs.

Just Out -- 2004 National Nursing Home Survey

2009-06-10T20:00:00.011-04:00

Credit — Tim Takcas, TN elder law attorney extraordinaire

http://www.cdc.gov/nchs/data/series/sr_13/sr13_167.pdf

Data Highlights include:

In 2004, there were 1.7 million nursing home beds in the U.S. compared with 1.9 million beds in 1999.

The number of nursing home residents decreased from 1.6 million in 1999 to 1.5 million in 2004.

Mental disorders were the second leading primary diagnosis among residents at time of interview (22%). This represents more than a 20-percent increase over the 1999 estimate, when 18% of nursing home residents had a primary diagnosis for a mental disorder at the time of interview.

Almost 9 percent of current residents had a fall reported in the 30 days prior to the facility interview.

About 65 percent of current nursing home residents had at least one type of advance directive.

In the 90 days prior to the facility interview, almost 11 percent of current nursing home residents had at least one hospitalization or emergency department visit while in the care of the nursing home.

Estate Plan Messes -- Failing to update beneficiary designations

2009-06-09T20:18:00.003-04:00

OK, you've finally seen a lawyer. You signed your will, durable power of attorney, health care proxy, and maybe a trust. What did you forget -- or what did the lawyer forget to talk with you about? How about checking that beneficiaries on your life insurance, retirement accounts, and other assets which pass outside of probate are updated?

When I prepare an estate plan or administer an estate for someone who has died, I ask for information about ALL of the property owned by the living clients or the decedent. That includes life insurance policies, annuities, and retirement plans, like 401ks and IRAs. I have seen a number of these policies name as beneficiaries long-dead parents, ex-spouses, or children that the client stopped speaking to years ago. Not making sure that these changes are addressed when one is putting together an estate plan is only doing half the job.

Tax credit for advance directives?

2009-06-08T19:03:00.003-04:00

Rep. McDermott (D-WA) has introduced HR 2705, which would provide a tax credit of 30% of qualified costs of legal work up to a maximum of $500 for preparation of advanced directives.

Given current pressures on federal revenues, I'm not holding my breath waiting for this measure to pass, and I question how much of an incentive this credit would give anyone to go see a lawyer. But anything that gets Congress to talk about end-of-life decision-making is a good thing.

Pending Legislation in the MA Legislature to Support Family Caregivers --

2009-06-07T23:14:00.007-04:00

According to a 2007 survey by the National Alliance for Caregiving, a broad-based coalition of organizations and corporations, family caregivers spent $5,500 of their own money caring for elders, not counting lost wages. Yet MassHealth has taken the position that family caregivers shouldn't be compensated for the services they provide because family members are "supposed to" take care of their loved ones. Unfortunately, an agency's peculiar 19th-century vision of a moral good doesn't recognize hard truths. It is less expensive to keep elders in the community than for the state to pay for nursing home care. Yet spouses and children of disabled elders who put their personal and financial lives on hold -- often for years at a time -- lose the opportunity to pay into Social Security and save for their own retirements -- thus increasing the risk of real poverty in their old age. They may be unable to pay current bills or help put children through college because they have stepped out of paid employment to care for loved ones.

Now the Massachusetts legislature has a chance to make it clear that this difficult work has true economic and social value. State Senator Mark Montigny and State Representative Kay Khan have introduced An Act to Help Families Care For Elders, House Bill 536, Senate Bill 59. The proposed statute would make it clear that elders could enter into fair and reasonable contracts for care with their loved ones where a medical professional or social worker has documented that the services are required to allow the elder to stay or return to the community. It would recognize the fact that families shouldn't be forced to chose between paying for their own living expenses and caring for a parent. Hearings on this important bill will happen this week.

Please contact your state senator or representative and let him or her know that we shouldn't penalize our elders because they choose to hire a child rather than strangers from an agency to give them care. You can locate your legislator's telephone number and e-mail address by going to the Legislature's main page and scroll down the left side of the page to the links by city or town.

The blog is back

2009-06-07T23:07:00.003-04:00

It's been nearly a year since I've posted anything -- much too long.

I hope that the revived blog will be of use to my readers.

Medicare may pay for advanced directive counseling by physicians

2008-07-12T18:37:00.005-04:00

By a veto-proof majority, Congress has just passed an amendment to Patient Self-Determination Act of 1991 which would include counseling concerning advanced directives as part of the "initial preventive physical examination" (IPPE), a once-in-a-lifetime benefit given to all new Medicare beneficiaries under Part B. 42 U.S.C. 1395x(ww). In other words, physicians will get paid to raise the issues concerning the choices to be made where further efforts to cure disease in the course of the examination.

Sounds like a good idea... but as a practical matter, primary care physicians are economically pressured by both Medicare and private insurers to maximize the number of patients which they can see in the course of a day. Thanks to Ted Kennedy's unexpected vote last week, the Senate passed legislation replacing the 10.6% pay cut for primary care physicians that went into effect on July 1 with a 0.5% raise through December 31, 2008. (Payments will rise by another 1.1% for calendar year 2009.) This raise is miniscule compared with the payments Medicare makes to specialists. New doctors are avoiding going into geriatrics and primary care because they can make more money in radiology or plastic surgery or other specialties with higher reimbursement rates.

I have to wonder whether, even though physicans will get paid something for counseling about the end-of-life issues, if those discussions will get short-shrift in some cases. Further, these discussions have to be held again and again, as the older patient's attitudes about treatment and death frequently change as health deteriorates over time. I see no promise that physicians will get paid to raise these issues as the patients' needs change.

Further, will Massachusetts physicians counsel patients about what can happen if the health care agent or a nursing home or hospital ignores those directives? Massachusetts is one of three states in the US where advanced directives --giving specific directions for care outside a health care proxy -- are NOT legally binding. Some physicians may not be aware that there is a procedure to enforce the health care proxy in the Probate Court. These issues concerning patient rights are legal as well as medical -- are the doctors going to be encouraging their patients to see their friendly local elder law attorneys? I think not.

source:http://www.medicalfutility.blogspot.com/

Federal Estate Tax -- likely here to stay

2008-06-30T10:11:00.005-04:00

In 2001, Congress passed legislation which was intended to phase out the federal estate tax -- sort of. Over the past six years, the threshold for federal estate taxation increased to its current level of $2 Million this year and $3.5 million in 2009 -- and then disappear altogether for 2010 and come back at $1 million on January 31, 2011. Despite morbid jokes about timing one's death for December 31, 2010, this scheme has caused headaches for estate planning attorneys all over the US. It's hard to know how to advise a client about federal tax planning when Congress fails to address the sunsetting of a short-term political gimmick.

It seems increasingly likely that sometime next year, Congress will pass new estate tax legislation which will preserve estate taxation at a higher threshold. The only question is what that threshold will be and the tax rates. Barack Obama has stated publically that he is in favor of a $3.5 million threshold; John McCain has been quoted in favor of a $5 million threshold. Since good estate planning with tax-favored trusts allows a couple to pass on an amount equal to double the threshold amount free of federal estate taxes, as a practical matter, it will remain possible for a married couple to pass on at least $7 million free of federal estate tax to your children. Therefore, the VAST majority of estates will continue to never see federal estate taxation. For more -- see Kiplinger Retirement Report, June 25, 2008 http://tinyurl.com/3nlmf8

However, many Massachusetts residents must still plan for estate tax minimization. The Massachusetts estate tax threshold is only $1 million, and there are no plans to change it. That tax is applied to the entire estate --including real estate, life insurance, and retirement accounts. A will, by itself, will not prevent Massachusetts estate taxation on a $1 million estate at the death of the second spouse. The tax rate shoots up sharply. A taxable estate of $1,050,000 would owe $36,000 in taxes. A taxable estate of $1,500,000 would owe $64,400.

By creating a Massachusetts credit shelter trust, you can double the amount left to your heirs tax-free. If your create an irrevocable life insurance trust and provide the trust with funds to cover any additional tax liabilities, you can minimize the risk of or even avoid paying any tax liabilities with your estate's assets while passing on even more money to your children tax-free from the life insurance policy.

Please feel free to call my office at 781-433-8665 if you would like to discuss saving some serious money.

Your will is not the only part of your estate plan

2008-06-04T18:17:00.007-04:00

A lot of folks equate "writing a will" with "estate planning." However, your estate includes ALL of your assets, including your life insurance, retirement accounts, your interest in jointly-owned property, and other assets which name a beneficiary. Generally speaking, Massachusetts law holds that the assets which name a beneficiary are NOT included in the list of stuff that passes to the heirs named in your will. (Note that is an important exception for 401K accounts, which Federal law requires be left to a spouse unless the spouse signs a waiver.)

So, let's say that you named your brother, John, as the beneficiary of your life insurance policy -- then you put the policy away and never look at it again. A few years later, you get married. Your Will leaves your "estate" to your spouse. Guess what happens to that life insurance policy when you die? Uh, huh... John gets it. Now, your spouse may really, really need that money. Too bad. The law says that it belongs to John. If he wants to give it to your spouse, he can -- but he doesn't have to.

The only way that John doesn't get the proceeds of the insurance policy is if he dies before you. If that happens, and if no one is named as a contingent, or "back-up" beneficiary, THEN it passes into your estate.

OK, you say... what's so bad about that? Well, it depends. Maybe everything works out for the best. But what if the law of unintended consequences kicks in?

For example, if the receipient of the money is on Medicaid and suddenly gets all that money, she loses eligibility for public benefits unless your will has a supplemental needs trust built in for her benefit or she can transfer the money to someone else allowed to receive it under the Medicaid regulations without having that gift called a "disqualifying transfer."

Or what if your spouse is also dead? Was anyone named in the will to get your property if he or she died before you? If nobody was, then the estate passes according to the law of intestacy -- which may mean that some relative you don't like could inherit those funds because he's one of your "next of kin."

So, the moral of the story is this: When you're writing or updating your will, check over ALL of your accounts -- the life insurance, the 401K, the IRA, etc., etc. -- to see if you have the right beneficiaries named. If you need to change the beneficiaries to reflect your wishes, don't wait. Your attorney can help you with the paperwork for a small additional fee if you don't want to do the work yourself. But get it done, before that policy in the safe deposit gathers any more dust.

What to think about when thinking about choosing your executor

2008-03-14T20:08:00.004-04:00

Choosing an executor of an estate is not bestowing an honor. It’s giving someone a job –often a thankless one. More often then not, the executor has little idea about the nature of the assets he’s been appointed to look after, the debts that may be owed, whether or not taxes need to be paid, and so forth.

An executor has a duty to protect the interests of the estate and its heirs. Once you’ve passed away, your heirs will be very interested in getting all the money they think they are owed – as will your creditors and the taxman. If you pick an unsuitable, overburdened or inept executor, someone will be very unhappy – and unhappy people may decide to sue.
Before you appoint anyone, be honest with yourself about the person and the family situation. Have several frank conversations with your proposed executor about yourself, your values, and your finances before you tell your lawyer whom you wish to name to care for your affairs.

Don't appoint anyone with a history of recent or repeated substance abuse, compulsive gambling, or demonstrated inability to manage their own finances – if someone can't manage their own life, you can bet that they'll be more likely to bungle your estate.

Next, does the proposed executor actually understand the job? Is he able and willing to ask for help and will he actually listen to and follow professional advice? Or is he the kind of person who thinks that he knows it all and paying for advice is a waste of money? Your child may mean well, if he does not have experience managing anything more complex than a checking account, you probably shouldn't ask him to take on your estate's stock portfolio. Similarly, if he is not able or interested in learning about finances or following a lawyer's instructions, he is more likely to make significant mistakes will will hurt the interests of other heirs.

Does the person actually have the TIME to attend to the task at hand? Your child-the-doctor/executive/business owner may be full of good sense and intelligence. But if your shining star is juggling a ten-hour workday plus the responsibility of his own family, will he or she be able to attend to your financial affairs as well?

Look at family issues. Often a parent’s illness or death brings out long-simmering tensions between children out in the open. If you have several great kids and one “black sheep" who lives to make trouble, you can be sure that the black sheep will make your child-executor's life miserable.

After you think it through, you may decide that it may be better to appoint a professional fiduciary, such as a bank, trust company or lawyer, to manage your estate. The cost of the service will be more than offset by the money saved by having your estate's affairs properly and professionally managed.

Please call me at 781-433-8665 if you would like more information about how to prepare an estate plan that fits your needs and goals.

Reverse Mortgages -- Proceed with Caution

2008-03-03T11:19:00.003-05:00

In a reverse mortgage, the homeowner enters into an agreement with the lender to take a line-of-credit or lump-sum payment. The homeowner does not need to repay the loan until he permanently leaves the home, either because of death, a move to a nursing home, or sale. At that point, the lender collects on the loan and is paid interest and costs.

These loans are useful as a last resort for a person over age 62 with significant equity in the home who is facing foreclosure, bankruptcy, or has extraordinary medical expenses. I have had several clients who were able to stay in their home under those circumstances and enjoy the peace of mind which comes with keeping the wolves away from their doors. I have also counseled clients against taking out reverse mortgages when I thought them inappropriate.

These are NOT cheap loans -- typical closing costs are in excess of $14,000, including commissions and federally-required mortgage insurance. Interest accrues during the life of the loan. They also affect the interest of heirs who hope to inherit the property upon the elder's death. The borrower must go through counseling with a non-profit organization prior to being approved for the loan. Federal law actually requires the borrower to sign an agreement pledging that the proceeds will not be used to make investments. It is absolutely critical to use a lender who follows the code of conduct set out by the National Reverse Mortgage Lenders Association http://www.nrmla.org/nrmla/ethics/conduct.aspx

_____________

The March 2, 2008 issue of the New York Times had a front-page story concerning the very real risks of taking a reverse mortgage. http://tinyurl.com/3bozey

Briefly, the borrower, a 67-year-old California divorcee who had recently lost her job, was pursuaded by a less-than-ethical reverse mortgage salesperson to take a $200,000 loan. She paid off a $68,000 mortgage and kept $33,000 in cash. Despite the fedederal regulations, the lender sold the borrower two deferred annuities which paid her $540 a month. Not only did the terms of the annuities imposed nasty penalties if she tried to access principal in the first seven years, but she was not told that the money used to buy the annuities would cause the balance of the mortgage to increase by at least $600 per month.

According to the Times, the lender, Senior American Funding, has been sued a number of times for fraud and elder abuse for similar practices. It also cites an AARP survey found 1 in 10 borrowers were urged to use loan proceeds to purchase investments. Clearly, additional safeguards are required.

Had the borrower in the Times story come to me first, I would have looked at the entire financial picture -- including the terms of the divorce agreement, cash flow needs, existing savings and investments, and budget. We would have discussed alternatives, such as determining whether she qualified for a standard home equity loan or line or credit, or taking in a roommate, or even selling and moving to more affordable housing. We would have discussed the short-term and long-term legal issues, such as possible conflicts with children looking to inherit the house. If it appeared that a reverse mortgage was the only remaining option, I would have counseled her to pay off the old mortgage and then take out no more money than absolutely necessary to meet her needs. As an attorney, I have no interest in selling her a product which is not appropriate for her -- and indeed, have an ethical responsibility to examine all the pros and cons of the deal.

Please feel free to call me at 781-433-8665 if you are contemplating whether a reverse mortgage is right for you.

Who can make a will?

2008-02-24T23:04:00.003-05:00

Under Massachusetts law, any person 18 and over may make a will, provided that they have "testamentary capacity." Testamentary capacity can be briefly described as:
Do you know who you are?

Do you know what you own and where those items are located?
Do you know who your loved ones are?
Are you making decisions without being improperly influenced, either because of illness or because someone is trying to convince you to make a decision which you might not otherwise make of your own free will?

The will must be in writing and the signing witnessed by two persons who are not either potential heirs or executors of the estate. However, if a notary is also not present at the the time of the signing, the Probate Court may force the executor to produce the witnesses so that they may testify that the person had capacity to sign. By having a notary present and signing an affidavit stating that the maker and the witnesses were all over 18 and signing the document as their own free acts and deeds, the will becomes "self-proving."

Please feel free to call me at 781-433-8665 or 508-429-3035 if you would like to discuss making your own will.

Does your estate plan include your furry friends?

2008-02-22T16:27:00.005-05:00

Many older persons resist leaving their homes because they are understandly worried -- even terrified -- that no one will care for their beloved companions. Go into any animal shelter and you are likely to see at least a couple of sad-eyed older animals who have landed there because their human friend has died or entered into a nursing home. Unfortunately, these creatures are less likely to be adopted, especially when there are puppies and kittens available.

Looking out for your furry, winged, scaly and finned friends should be a part of your estate plan. Your estate planning file should include your pets' names, the name and number of your veterinarian (and groomer, if applicable), any medical or dietary needs, quirks which a caregiver should expect.

It's important to find a caregiver who will take in your pets if needed. This may be a friend or relative or a local breed rescue group, humane society or no-kill animal shelter. Your estate plan should ideally make some financial provisions to help compensate for the cost of care.

Unfortunately, Massachusetts law does not allow a pet to be a beneficiary of a trust. However, a caregiver may be a beneficiary of such a trust, conditioned on providing the standard of care to Fluffy or Max which you've outlined in the trust document. If your means are modest, you could leave your pet to a caregiver or a humane society in your will, along with funds for its care.

Please contact my office at 781-433-8665 or 508-429-3035 to discuss how you can include your companion animals into your estate plan.

(Thank you to Gina Barry, Esq., at Bacon & Wilson in Springfield, for leading the charge on planning for pets in Massachusetts)

When is a trust a waste of money? Part 1

2008-01-26T20:53:00.001-05:00

Lots of folks ask me if they need a trust. The answer is... it depends.

There are lots of great reasons to have a trust. A trust is a critical part of planning to minimize estate taxes, which affect Massachusetts estates worth in excess of $1 million (including real estate, cash, retirement accounts, life insurance, etc.) It's absolutely essential if you want to leave assets to a family member with a disability or who receives public benefits. It's also a critical document for parents with children who are not old enough to manage money or are irresponsible with their funds, no matter what their age. A trust also allows you to avoid the cost of probate. However, just because you can HAVE a trust doesn't mean that you SHOULD in all circumstances.

First, your trust is only as good as the quality of the drafting. A trust downloaded from the Web is worth LESS than the paper it's printed on. Similarly, there are a lot of lawyers who pump out trusts by the gallon, without ever updating the boilerplate language to reflect changes in law or best practices. I can -- and have -- made a lot of money by asking the Probate Court to correct badly drafted trusts after the maker is incompetent or dead.

Good drafting starts with good interviewing and information gathering. What are the client's assets? How does the client own them? Are there tax or other implications if we change how those assets are owned? Is the client married? Is the marriage healthy? Are there children? Are any of those children disabled? What are the client's goals? Are some of these goals more important than others? Etc., Etc. If the attorney isn't asking these kinds of questions, how is s/he going to know what you need out of the trust?

If you are in eastern or central Massachusetts and are interested in having a trust, call me at 781-433-8665 or 508-429-3035.

More to come.....

Crickets

2008-01-05T20:49:00.000-05:00

Have you heard ANY of the presidential candidates discuss retirement issues? The silence is deafening -- one can almost hear the crickets chirping. The very first baby boomers are turning 62 and some are electing to take their Social Security checks now.

Listening to tonight's ABC News-sponsored Republican and Democratic candidates debate, I heard maybe 90 seconds of discussion on the topic. Senator McCain discussed Arizona's use of home and community care services to reduce the number of persons in skilled nursing facilities. During the Democrats' segment, there was a brief ABC News piece concerning Social Security and Medicare, which ended up not being discussed despite the moderator's promise to get to those issues. That was it.

The December 28, 2007 issue of Business Week, which discusses the various stands of the major candidates, notes that

During the next President's term, baby boomers will begin to retire in earnest. The U.S. Census has predicted that between 2000 and 2010, the number of Americans age 45 to 64 will increase from 62.4 million to 81 million; and those age 65 to 84, from 30.7 million to 34.1 million.

As Americans retire in greater numbers, without some new policy decisions to reverse current trends, the fiscal health of Social Security and Medicare are likely to decline. The costs of chronic and nursing home care increasingly will exceed the ability of the middle class to pay for them, and as the first of the 401(k) generation retire, more and more boomers will confront the reality that they have not saved enough for the retirement they've dreamed about.

(snip) My survey suggests that at this point in the campaign, retirement issues rank far from the top of the candidates' agendas. Once the primaries are over and the nominees have been chosen, perhaps a nationally televised debate on retirement would spark more focus and momentum. After all, the Census Bureau reports that in 2006, one-third of all registered voters were in the 45- to 64-year-old age group, and when voters 65 and older are added in, the total rises to fully 50%.

If we are going to have a national discussion about change, this dialogue must include specifics about how we, as a country, are going to tackle the enormous fiscal challenges which will accompany both the retirement of the first wave of boomers and the deterioration of their parents' health in very old age.

Age and undue influence

2007-12-26T20:48:00.000-05:00

The New York Times published an article on December 24 asking the troubling question whether an elderly person should be presumed as being suspectible to undue influence solely because of age:

Eight years ago, when Robert J. Pyle was 73 years old, he had about $500,000 in the bank and owned a house in Northern California worth about $650,000. He was looking forward to a comfortable retirement.

Today, at 81, he has lost everything. Mr. Pyle, a retired aerospace engineer, now lives in his stepdaughter’s tiny, mountainside home in a room not much larger than his bed.

By his own admission, Mr. Pyle willingly made every decision that led to his financial problems. He gave away large sums to people he thought were friends, and then, in need of money, sold his house at a deep discount to the first person who offered to buy it.

Even so, he claims in a lawsuit that he should be compensated for some of his losses for a simple reason: he is old, and should not bear the full responsibility for his choices.

http://www.nytimes.com/2007/12/24/business/24golden.html

Mr. Pyle may "show no signs of dementia," but the actions he took certainly suggest to me that he likely went into a depression after his wife's death. He may also be living with mild cognitive impairment (MCI), a predecessor condition to Alzheimer's dementia. Persons with MCI can engage in the full range of normal everyday living, but judgment may be impaired. I have observed in ten years of practice that depression, MCI and undue influence often travel together.

While the brain inevitably changes with age, neither depression nor MCI are normal signs of aging. According to the Mayo Clinic, 12% of persons over 70 will experience MCI -- which means 88% will not.

http://www.mayoclinic.com/health/mild-cognitive-impairment/DS00553

Granted, I don't know California law. However, the law says that every person is presumed competent unless a court orders otherwise. Being competent includes the right to make bad, dumb or uninformed decisions and live with the consequences. The legal question of undue influence crops up where the individual's circumstances impair their decision-making ability, but they are not clearly incapacitated.

Massachusetts law has the following test for undue influence: "(1) [an] unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) ... [who had] an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through [the] improper means [of undue influence]." Heinrich v. Silvernail, 23 Mass. 218, 223 (1986).

Our state's law directs us to look at the facts and circumstances which made someone susceptible -- illiteracy, mental illness, intellectual function, isolation, poor health, financial dependency, and so forth. Arguing undue influence solely because of age sets a terrible precedent for the substantial number of elders who can and do make well-reasoned decisions.

A beginning....

2007-12-16T22:55:00.000-05:00

Nothing makes me feel better as a lawyer or a person than to see a new client leave my office calmer than they were than they arrived. I often tell new clients "I'm so sorry that I can't help you cure your husband's Alzheimer's or your child's mental illness. However, we can work together to develop a strategy which will help make things easier on you and your family." I'd think the change in mood happens as a result of breaking problems down into bite-sized pieces, discussing the options, and developing an action plan.

My goal in writing this blog is to share observations about law, politics and other matters which affect readers and their loved ones. I also hope to encourage readers to contact an elder law attorney before problems get out of hand. Sometimes these postings may include links to articles which I hope will illuminate issues facing my clients, even if the issues or the articles aren't necessarily legal in nature. I welcome comments, as they will provide me with fodder for future posts.