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Planning Ahead is Planning for Life

Planning Ahead is Planning for Life

Planning Ahead is Planning for Life

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Author Archives: Deborah Blum-Shore

THE GREATEST GIFT OF ALL

The Shore Law FirmNo one wants to think about a time when we might not be here.  And that is especially true for those of us who have minor children.  There is no one in the world who can take care of our children as well as we can (right?), and the thought that our kids might have to grow up without us is often too hard to comprehend.  But yes, Virginia, the reality is that sometimes stuff happens:  a car or plane or boat accident, a terminal illness, medical malpractice, crime.  We can’t control any of those things.  But we absolutely can control what happens next.

Sadly, for many reasons but the biggest one being denial, parents often fail to plan for the unthinkable.  In my practice I have been involved with two cases where parents have passed away leaving behind minor children, and I just learned of a third.  Each provides teachable moments, and incentive to start the new year with a current estate plan in place.

The first case involved two toddlers whose single mom died suddenly right in front of them.  The police identified and reached out to Mom’s “in case of emergency” Cousin (Cousin’s name and number were programmed into Mom’s cell phone).  Cousin immediately collected the children (why the police just handed the kids over to her remains a mystery, but we were glad that they did).  Because one of the kids had a serious medical condition, we needed to get Cousin legal guardianship ASAP.  Mom did not have a Will, but Mom had told Cousin that it was her wish that Cousin take care of the children if anything ever happened to Mom.

But then Dad appeared out of the woodwork and demanded that guardianship and custody be awarded to him as the children’s surviving parent.  Since not seeing your kids for four years and failing to support them does not render a parent legally unfit, the court granted his petition.  He took the kids home with him to Florida and Cousin was rarely thereafter given a chance to see them.  Definitely not what Mom would have wanted.  If Mom had had a Will naming Cousin as guardian, Dad still might have won, but Cousin’s claim would have been much stronger.

The second case just happened.  Single mom of a teenage son just passed away after a two year battle with cancer.  Her death was clearly not a surprise.  Son has lived with Mom and her extended family.  Dad has been only tangentially involved and he lives a distance away.  Dad now wants his son.  Mom was not a fan, but Mom did not ever in her two years of being sick write a Will expressing her wishes appointing someone else to be responsible for her child.  Because Son is over the age of 14 he will have an opportunity to express his wishes in a court proceeding, but best guess is that unless Dad is willing to work with Mom’s family, Son will be uprooted from his current life and will end up living with Dad.   Probably not what Mom would have wanted.

The third case has the saddest story, but also has the best ending.  In that case, married Mom died, leaving behind Dad, an 18 year old daughter (legally no longer needing a guardian), and a 17 year old son.  A few months later, Dad went in for what should have been simple surgery.  And died.  The children were now orphaned.  But both Mom and Dad had left Wills, appointing an out of state Aunt and Uncle as the guardians of the kids.  The aunt and uncle flew in, temporarily moved in with the kids, and got legal guardianship of the son until he too turned 18.  Aunt and Uncle honored Son’s wish to stay here through his graduation from high school.  Although they had legal custody, they arranged for friends in Massachusetts to take physical custody until the school year was over.  No one ever imagined that both parents would pass away so close in time, but the transition was as painless as possible because the parents planned ahead.  And that is exactly what Mom and Dad wanted.

In this season of gift giving, where we often focus more on toys and electronics than intangibles for our kids, it is good to remember that the best gift you can ever give your children is the gift of your love and security.  If you don’t already have a Last Will & Testament naming a guardian for your minor children (and an alternate, just in case), please put “Write a Will” on the top of your New Year’s Resolution list.  We look forward to working with you in 2016 to make your resolution come true.

Happy New Year from The Shore Law Firm

IN THIS SEASON OF THANKSGIVING: THANK YOU!

Thank you from The Shore Elder Law FirmPart of my job as an elder law and estate planning attorney is to help my clients make important decisions about what will happen to their assets, and who in their lives will accept the challenges of helping my clients with their finances and health care matters, both while they are living and after they have passed away.

In the course of those discussions, I often have the occasion to point out to my clients and their families how something is happening that is cause for thanksgiving.  These occasions are not always immediately obvious to everyone involved, so let me share the top three with you … plus one more.

“Thank you for the wonderful gift”

One of the questions I get asked all of the time is:  “If I leave my kids something in my Will, do they have to pay tax on it?”  A twist on that comes from the future beneficiaries:  “If I inherit that asset, will I have to pay tax?”  The actual answer depends of course on the type of asset being passed on, but in most cases my answer is that the only obligation the recipient has is to say thank you.

Other than for a spouse (and even then there are limits), there is no law anywhere that says that your parent/grandparent/aunt/uncle/sibling must include you in their estate plan. There is no right to receive an inheritance, no absolute entitlement to anything.  Which means that if any of your family members do include you in their plan, they have done a really nice thing for you.  In many cases, you will not find out about the gift until your loved one has passed away, and sadly at that point you will no longer be able to thank them in person.  Maybe you show your thanks by paying it forward.  At minimum, this is an occasion to take a few minutes to honor your loved one’s memory and to send a silent “thank you” their way.

“Thank you for including me”

The typical estate plan provides for one’s spouse if living, then for one’s children (if any), and then down to the grandchildren’s generation if any of the children have predeceased the parents.  The typical estate plan does not include the in-laws.  This doesn’t mean that the parents don’t love their children-in-law.  It just means that they are keeping their assets in the blood line.  In my experience, daughters/sons-in-law are typically included in a parent’s estate plan only if their child has predeceased the parents, has been in a longstanding marriage, and has not had any children, and even then, it is rare that the parent gives the in-law the full amount of the share that would have passed to the son or daughter if living.

Which means that when a parent decides to include a daughter/son-in-law as a beneficiary in a Will or Trust, the parent has done something very special.  As above, if you are privileged to have a mother/father-in-law who has included you as a beneficiary in their plan, that is absolutely an occasion to say thank you.

“Thank you for not picking me!”

A person creating an estate plan has many jobs to bestow:  attorney-in-fact to handle finances, health care agent to make health care decisions, maybe a trustee to manage trust assets, and a “personal representative” (the job formerly known as “executor”) to handle a probate estate.  And just to be safe, we want a back up person for each of those jobs in case the first choice person is unable or unwilling to serve.  In selecting the right people for each job, we want to look at each candidate’s talents and strengths.  The oldest child is not necessarily the best choice just because he/she is the oldest.

In many cases, we run out of jobs before we run out of candidates.  Or, for various reasons, a family member may just not be right for any of the jobs.  But just like on the playground when someone is selected last for a team … or not selected at all … this often results in hurt feelings by the people who feel that they have somehow been left out of the game.  Decades-old family rivalries can emerge (“I knew she loved you more!”) … at least as long as the choices are only words on a piece of paper.  Once the time comes when the sleeves get pushed up and the hard work of those jobs starts, the people who were chosen often find themselves wondering what the heck they agreed to, and the ones who did not get picked discover they are thrilled that someone else has to deal with the challenges.  I counsel my clients to give their kids the heads up so there will be no surprises down the line, but to let the ones not chosen know that ultimately they will be on their knees giving thanks for not being chosen.

“Thank you for picking me”

Blood, sweat, and tears aside, it is an honor to be picked for the hard jobs, and an occasion to say thank you.  In that spirit, we at The Shore Law Firm thank you for the honor of choosing us to guide you and your family through the challenges of the aging process.

Thank you from The Shore Elder Law Firm

Happy Thanksgiving!

TRUST PLANNING: IF NOT A CURE ALL, WHY DO IT?

dramaIn the past few weeks, I have had two trustee-clients ask me the same question:  “What was the point of all of the planning if I still have to deal with all of this drama from my sibling [or child] now that my parent has passed away?  Wasn’t Mom/Dad’s Trust supposed to avoid all of this?”

In the first case, Mom had established an Irrevocable Trust during her life and had transferred her house to her trust with the goal of preserving the property in the event that she ever had to go to a nursing home.  She built into the trust special language that will also protect the trust assets so that her disabled son can preserve eligibility for any government benefits he might need due to his own illness.  As it turned out, this Mom never ended up needing nursing home care before she died.  Her son (trustee-client’s brother) is chafing at timeline and restrictions and is demanding “his” money out of the trust immediately despite the restrictions on his share.

In the second case, Mom and Dad each established and funded Revocable Trusts many years ago.  Both trusts incorporated language intended to minimize or avoid completely any estate tax exposure on their deaths.  Dad died years ago, and the assets in his trust were indeed sheltered from estate tax.  Mom just died so it is time to distribute the assets from both trusts.  Beneficiaries of Dad’s trust are Daughter (trustee-client) and her children.  Two of the three grandchildren are saying “thank you, Grandpa” for the gifts that were left for them.  The third grandchild is challenging her mom’s administration of the Grandpa’s trust, and scrutinizing each distribution that was made over the years to her elderly grandmother.

In both cases, it is the “give me” attitudes of the beneficiaries, even more than their demands themselves, layered on top of longer-standing relationship challenges that arose after the plans were created, that are causing so much distress and wrecking havoc on these families.

So, what was the point?  Would these families – and others like them — have been in better shape had the parents not had their estate plans in place?  Despite the drama, I believe the answer is “no.”

Let’s look at what the plans did accomplish.

In the first case, Mom and her children had the peace of mind during her life of knowing that if she did have to go to a nursing home, the value of her home was protected from the costs of her care and from any Medicaid claims for reimbursement after her death.  Since the house was in trust and not owned by Mom individually, we do not have to go through the probate process in order to sell the house and administer the proceeds.  And (although he doesn’t appreciate this), the very ill son can also access long term care benefits without fear that his share of the sale proceeds will have to be spent down or grabbed by the state after his death.  All of those are good things.  If there was no Trust, we would be in probate court, and the son’s share would be fully exposed to the costs of his illness.  And if Mom had needed nursing home care, the state would be looking for payback from the house of any Medicaid benefits she might have received.

In the second case, if all of the assets had passed directly from Dad to Mom when Dad died, then Mom would now have a taxable estate and no one would be getting anything until after the state has been paid.  And, since a traditional estate plan usually just passes assets down to the immediately next generation rather than pushing some down to the grandchildren if their parent is still living, it is quite possible that the grandchildren might now be getting $0 since Mom had years to (a) spend everything, and/or (b) change her own estate plan, especially after she had a falling out with Grandchild #3.  If there were no Trusts, we would likely now be in probate court for Mom’s estate, there would be an estate tax bill due nine months after Mom’s death, and Daughter would take all under the laws of intestacy.

So what did I tell my clients when they asked “what was the point?”  I told them that neither a Trust nor a Will is a magic bullet that will dissolve all family dysfunction or longstanding (or new) relationship issues.  When there is money on the table, those issues are going to come to the surface regardless of whether we are managing and distributing property in the relative privacy of a trust administration, or in the public forum that is the Probate Court.  But the reason why we have Trusts and Wills is to make sure that the person creating them has a chance to be heard, and so that his/her wishes/hopes for his/her loved ones are honored.  And to minimize money going to taxes and lawyers and court costs.

No parent has ever walked in to my office and said “gee, I sure hope my family fights for years after I die.” And so, an important part of the estate planning counseling process is working to identify and resolve potential trouble and challenges while the creator of the plan is still living.  Our goal at The Shore Law Firm is to help our clients create plans that will maximize the likelihood that their children/grandchildren will enjoy years of happy holiday dinners together, rather than duking it out on the steps of some courthouse.

And that is the point of planning.

multi-family-dinner

 

MASSHEALTH MIRACLES: HOW CAN YOU GET ONE OF YOUR OWN?

MassHealth-ApplicationA large part of our practice is educating our clients and their families about long term care opportunities, helping them access the care most appropriate for their needs, and then helping them figure out how to pay for that care.  For many clients, the answer to “how do I pay?” is the Medicaid program, known here in Massachusetts as “MassHealth.”

The MassHealth application process is always very challenging.  Even for clients who have simple finances, it involves the collection and analysis and presentation of years’ worth of a client’s financial life.  It involves a back and forth between the client and the MassHealth agency over several months.  It often involves a disconnect between the actual black and white words of the Medicaid laws and regulations and the way that those rules are actually implemented by the MassHealth agency.  It involves working with an agency where there is no uniformity of process even though there absolutely should be.  Sometimes it seems like a combination of a scavenger hunt and that old TV show “Beat the Clock.” It always involves telling the client’s story.  And sometimes it involves a lengthy appeal process to change an initial “no” decision to a “yes.” It always generates considerable stress for the patient client (if he or she is able to understand) and for sure for his/her family.

Because hanging over the entire process is the prospect of often very large (as in thousands and thousands of dollars large) unpaid bills and health care vendors such as nursing home business offices very eager and anxious to be paid.

One of my absolute favorite moments in our elder law practice is when we are able to share with a client and her family that we just received a notice from MassHealth approving her application, with benefits beginning on the exact date that we requested.  Even when we have done everything exactly right, you just never know what a caseworker might do until we actually see those words on the page.  That approval notice is The Prize.  Sometimes it is even the key that is going to get a patient through the front door of a facility.

We appreciate that nursing homes want to be paid.  They certainly are entitled to be paid for the important services they are providing to our clients.  The Business Office staffs of nursing homes interact with the MassHealth agency on a daily basis and are very familiar with MassHealth’s billing and payment practices.  But the Business Office staffs … and the Medicaid application preparers to whom they often refer families for “free” help … are not attorneys.  Yes, they have their canned lists of documents that are generically needed to support applications.  Yes, their help can be useful for single patients who truly now have no money, and who have never really had any.  For anyone else, however, it is critically important to remember that “free” often comes with a big invisible price tag because there is a whole lot more to achieving The Prize than merely checking off some “yes/no” boxes and tossing some documents into an envelope.  Because it’s not just about trying to get a bed paid which is, understandably, the nursing home’s #1 priority.  The future financial life of the patient and his/her spouse and family is at also very much at stake.

Nursing homes aren’t in the business of worrying about that.  But we are.

Yesterday, we got The Prize for a client.  It was a very exciting moment because this has been a challenging matter with an uncertain outcome.  This client’s Medicare coverage for her nursing home bed had run out in early November.  Under the Medicaid rules, the client had until the end of February at the absolute latest to submit her application in order to get retroactive coverage back to November.  The Business Office manager at the nursing home offered to help the family with the Medicaid application (for free), and over a period of several months collected documents from the family.  The family relied on the manager’s advice on how to spend the client’s remaining funds, on the steps to take to prepay her funeral, on the documents that were needed for the application.  They had no reason to worry that any of the advice might be wrong, or that there might be options other than those suggested.  Because the nursing home manager knows what she is doing, right?

But then, several months into the process, the manager threw up her hands and suggested that an application would never be approved because of apparent issues with the patient’s finances, and said perhaps the family had better hire a lawyer after all right away.  And the facility began to threaten the patient and her family with discharge for failure to pay the ever-growing balance on the patient’s bill.  Talk about stress!  Especially since by that point the Medicaid rules dictate that any excess funds the patient might still have can be used to pay only medical or funeral-related expenses.  If she still wanted coverage to go backwards to November, she could no longer use any of her remaining funds to pay for an attorney.

The patient’s daughter came to us in a panic in mid-January with less than six weeks remaining on the application clock.  We accepted the challenge to help this family and got to work immediately.

Turns out this client’s finances were indeed complicated. And some of the advice given by the Business Office manager was not complete and had foreclosed other options that would have been available to the client had she known about them sooner.  The timely approval of this application was definitely not going to be a sure thing.  There was a lot of work to be done in a very short time frame in order to beat the clock.

I had a lot of questions, and gave the family a lot of homework. We did damage control, including advocating for postponement of the threatened discharge notice.  We answered the questions on the application differently than the Business Office manager had done on her draft (our way preserved the client’s house!).  We identified the potential problem areas, and addressed each of them through the way we presented the financial documents and by telling the client’s story through Affidavits (which are legal documents).  We advocated for our client with the MassHealth caseworker who asked for additional documents that were not in the client’s possession or control, and thereby headed off the need for a lengthy appeal of a denial of the application for “failure to provide verifications.” Many, many hours were invested in this process by our Firm, and by the client’s children in order to pull all of this off by the MassHealth deadlines.

And we did it.  We got The Prize.  This client’s bed will be covered by Medicaid, back to the very first day in November that benefits were needed.  Six months of stress end with a very well deserved long, deep breath by everyone involved.  Phew!

I can tell you with near absolute certainty that if the family had done this application by themselves … or had let the Business Office manager or her designee prepare and file this application for the client … The Prize would still be a fantasy.  The facility would still be upset and renewing their threats of eviction.  The family would still be upset and scared and stressed.  Months more would be spent tied up with an appeal whose outcome would be uncertain.  Remember that every day that is not covered by Medicaid is going to cost the patient $300 or more, depending on the facility.  Not exactly “free.”

If you or your loved one is about to enter a nursing home … or is already there … we welcome the opportunity to review your case.  We can help to minimize your stress, and can make sure that the nursing home gets paid in a timely fashion.  A win-win, all around.  Will our help be free?  Nope.  But remember:  you get what you pay for.  Hiring us to help you answer the question of “how do I pay?” gets you our years of experience preparing successful MassHealth applications, our in-depth understanding of both the words and agency interpretations of the Medicaid rules, our knowledge of your planning options, and our ability to protect both the patient and the family.  And will get you your very own Prize.  Pretty good deal.

trophy

ESTATE PLANNING IS REALLY NOT THE BEST PLACE FOR “DIY”

hammer-on-thumb

I am a big fan of “DIY” (doing it yourself) in certain situations.  Home renovations and decorating, for example.  Heck, there is a whole TV network dedicated to people fixing up their homes by themselves, filled with videos and step-by-step instructions.  But you may have noticed that there is no TV network dedicated to DIY Estate Planning.  And there is a reason for that (well, maybe multiple reasons since one reason would be that the ratings would be awful).  DIY in Estate Planning World can be a dangerous and costly proposition.

Over our years of practice, we have seen multiple instances of cases where DIY went wrong.  Since yet another case just came across my desk, it seems like a good time to share a few examples with you.  Both involve attempts at disability planning that, if anyone on the receiving end is paying attention, are going to fail.

Health Care Proxy:

A Health Care Proxy (“HCP”) is designed to appoint someone (“agent” or “proxy”) to make health care decisions in the event that the person signing the document (the “principal”) is unable to communicate and/or understand enough to make his/her own medical decisions.  If someone does not have a HCP in place, and becomes incapacitated, the only other way for someone to get authority to act on the sick person’s behalf is to go to court and be appointed as Guardian.  That can be a costly and traumatic experience, and one that we generally try to avoid.

The statute that creates the HCP in Massachusetts (MGL c. 201D, Section 2) directs that the document must be signed by the principal, and witnessed by two adult individuals who are not named in the document.  Simple, right?  And yet, I have seen on several occasions HCPs signed by Parent and witnessed by Child who is named as the agent or alternate agent in the document.  Reason?  Child picked up the standard Massachusetts form at a hospital or MD’s office, brought it to Mom, grabbed someone else to maybe be present for the signing, signed on one of the witness lines, and then thought they were done and Mom was protected.  Is she?  Only if the health care providers to whom the document may be presented in the future don’t look carefully at the names of the witnesses.  Legally, the document fails, and Mom has only a false sense of security which may blow up and toss her into a courtroom when an on-the-ball health care provider refuses to honor the document.  Oops.

Durable Power of Attorney:

A Durable Power of Attorney (“DPOA”) appoints someone (“agent” or “attorney-in-fact”) to handle the principal’s finances and business dealings.  Massachusetts does not require witnesses on this document (although other states like Florida do require witnesses if the agent is going to have authority over real estate, for example, so having witnesses doesn’t hurt).  And, Massachusetts does not require that this document be notarized.  It is unlikely though that any financial institution would accept an unnotarized DPOA and so every DPOA I have ever seen has been notarized.

And there lies another trap for the unwary.  The son of one of my elder clients is a notary.  With apparently the best of intentions, he tried to help his mom update her existing plan by doing a little DIY estate planning.  He started with Mom’s old DPOA which had been drafted by Mom’s attorney and which named Son as the agent.  He did a little editing (leaving out some of the important stuff for unknown reasons), kept himself in as agent, did not include any alternate agent, had Mom sign it, and he notarized Mom’s signature.  Unfortunately, Son was unaware of the rules governing notaries in Massachusetts which prohibit notaries from notarizing documents (a) in which they have a direct financial or beneficial interest and (b) signed by any relative.  Oops.  On the surface, it looks like a real DPOA … but is it?  If anyone looks at this even a little bit closely, the family is going to have problems.  I have recommended that we do it over and do it right ASAP.

Lesson learned?

I’m right there with you in trying to save money if at all possible.  But if DIY is going to end up costing more than just paying for the service being done right in the first place, it sure isn’t worth the “savings.”

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