Massachusetts Estate Planning & Asset Protection Blog

Why Your Children and Grandchildren Should Have Healthcare Documents in Place

Posted by Dennis Sullivan & Associates on Fri, Aug 17, 2018

 

family

First, you may ask, what are the Healthcare Documents that you recommend?

At Dennis Sullivan & Associates we recommend to everyone over the age of 18 (clients, friends, and family members) have appointed people to make health care decisions, and to receive health care information.

This is especially crucial for those who have college students and young adults in their lives. Young adult children and grandchildren, often times headed away to college, need health care decision making documents in place. These documents include an Authorization for Release of Protected Health Information forms in place (HIPAA), and Living Will and Health Care Proxy.

An 18 Year Old Is An Adult!

Once you turn 18, you are legally an adult, and no one has any automatic right to any medical information. Medical professionals are obliged to withhold any and all medical information of yours from anyone who may be requesting information, unless you specifically grant them authority to release the information. Sometimes, young adults will let the doctor know that it is okay to share information with their parents or close relatives, but it may not come up when the young adult sees the doctor. If an 18 year old forgets or is unable to give their consent, medical professionals, by law, are required to withhold the information.

HIPAA

In the unfortunate event where a young adult is unable to give consent due to being unconscious or in a coma the only way for parents to gain this information is if their child has signed off on the Authorization for Release of Protected Health Information form (HIPAA). This allows a parent to get information from a college health center, and speak with the care team.

Health Care Proxy and Living Will

Terry Schiavo is the reason why the importance of a Living Will and Health Care Proxy gained national attention. A Living Will addresses end of life decisions including the permission/request to discontinue life support after an extended period if a person is in a persistent vegetative state. Terry Schiavo did not have a Living Will in place, and thus a decade long legal battle ensued between her husband and parents.

 

A Health Care Proxy designates an Agent that can make Health Care decisions on your behalf if you are unable to make the decisions for yourself. Examples of this could include being unconscious, lacking capacity, or being placed in a medically induced coma. A Health Care Proxy/Living Will and is essential because it names agents to make health care decisions if you’re unable to make decisions on your own.

The Health Care Proxy and Living Will give authority to a person (or persons) of your choice to make decisions if you are unable to.

In short, a HIPAA document will allow for those of your choice to be privy to medical records and a Living Will and Health Care Proxy will appoint an agent to be your medical decision maker in the event that you are unable to do so.

If you would like to implement these essential documents, call our office to schedule a consultation. Many of the estate plans we review are death plans. They are designed to solve situations that occur at death, avoiding probate and distributing the estate. While all these objectives are important, there is much more that is needed. One of the most important parts of planning focuses on how documents work while you and your family are living. To learn more about necessary elements of an estate plan, attend a complimentary workshop.

Tags: children, health, Health Care, HIPAA, health care proxy, grandchildren, power of attorney, Skilled Care

Be Prepared Before Alzheimer’s Strikes

Posted by Dennis Sullivan & Associates on Fri, Apr 03, 2015

Be Prepared Before Alzheimer’s Strikes | Massachusetts Elder Care Attorney

 

dementia-2

 

One of the problems we see in clients with early stages of dementia is trouble managing their personal finances. This can often lead to costly financial mistakes before there are signs that something is wrong.

No one knows exactly what the future holds for us, so early planning for potential late-in-life health issues is essential, as is keeping an eye open for any potential warning signs in loved ones.

If you notice that a loved one seems more disorganized than usual (bills are piling up, they have a hard time remembering names and words, or if things are in strange places throughout their home), it is a good idea to contact a doctor. Alzheimer's and most forms of dementia are progressive, this means it will get worse over the next few years.

Even before a diagnosis, it is important for people to discuss with their families how they would like to be helped. This includes deciding who will be the primary caregiver and who will be in charge of finances. According to a recent USA TODAY article, titled "Financial planning for dementia," a person with dementia often feels insecure that he or she will lose control and everyone else will tell him what to do. This is why conversations are so important to have before there is a problem in order to make sure your loved one’s wishes are carried out as well as avoiding confusion and misunderstandings later on.

We strongly recommend that everyone should have a will, power of attorney, medical directive, as well as a living trust set up before they have a problem. Without these important documents, the courts may need to become involved and appoint someone to oversee the care and finances, possibly someone with no connection to the family involved. This can be frustrating, time-consuming, and expensive.

In the course of the disease, a person may need help with the actions of daily living and may have trouble communicating. At this point, someone else should be designated to take care of all financial matters, and it might be time to start looking into an assisted living facility.

Healthcare costs for dementia patients can be substantial, and it is very important to provide for the financial security of a healthy spouse. If you would like to being the review process, please contact our office.

 

For additional guidance, please see The Seniors and Boomer's Guide to Health Care Reform and Avoiding Nursing Home Poverty the book provides important information for families on resources for quality care and protection for loved ones.

At the Estate Planning & Asset Protection Law Center, we provide a unique education and counseling process which includes our unique 19 Point Trust, Estate and Asset Protection Review to help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones, click here for more information. We provide clients with a unique approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: assisted living, power of attorney, trust, Wills, Alzheimers Disease, 2015

The Importance of a Well Crafted Power of Attorney

Posted by Dennis Sullivan & Associates on Fri, Jan 23, 2015

The Importance of a Well Crafted POA | Massachusetts Estate Planning Attorney

 law_books

 

As we always tell our clients, a power of attorney is just as important, if not more important to you, as your will.  Yet most people pay far more attention to the drafting of their will and give their power of attorney (POA) little or no thought. 

A last will and testament establishes your desires as to whom and in what manner you choose to leave my possessions and assets when you die.  While meaningful to you, it is more relevant to the persons receiving those assets after you’re gone.  A power of attorney, however, is critical to your well-being while you are still alive. The power of attorney is used at a time when someone is at their most vulnerable, when you can no longer take care of your own affairs and need the assistance of the person or persons who has been designated as your agent(s).

However, setting up a power of attorney has always been an afterthought for many people.  Before computers, a common response to the need for a POA was to pick up a preprinted document from the stationery store, today’s version is to print the document from a website found on the internet, such as LegalZoom.com. Both usually contain language no more specific than “I give my agent the authority to do anything that I can do as a principal”. In fact the fine print on the site informs you that “We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.”  If that is the case, how could you rely on their “non-legal” documents to take care of yourself and your family?

 Even when an attorney drafts the document, many will use a one size fits all approach that can often be detrimental to the client.  I think that the ease with which this document can be created has led to the myth of its low value in the eyes of the general public. Nothing could be further from the truth.

Here is a recent situation that we faced in our office that serves as an example to highlight the importance of the document and how critical a role it plays in achieving our client’s goals and objectives. 

 

We had drafted the client’s power of attorney.  It contains language permitting the agent “to enter any safe deposit box or vault on which [the principal is] a signer and withdraw or add to its contents”.  The agent wanted to close the account and surrender the box.

The bank employee reading the clause concluded that this power did not include the ability to close out the box (although he agreed the agent could close the bank account).  This is a situation we have come across frequently, an evaluation of the document limited to the express language, rather than examining the document as a whole.  Courts have reasoned that the whole document must be examined, and each clause should be used to interpret the others.

If the agent has the power to remove and add contents to the safe deposit box then he has the power to “deal with” the box and therefore has an implied power to open and close the box.  We could have had relied in this argument with the bank, however, there was another paragraph in the document that permitted the agent to conduct any banking transaction authorized by a specifically referenced Massachusetts statute.  I pointed out to the bank employee the specific language in that law authorizing the agent to open and closed safe deposit boxes.  What could have been a long, drawn-out problem was solved quickly through a carefully worded power of attorney.

In our 27 years helping people and their families, I have had numerous instances in which third parties, usually financial institutions, question the language in our documents.  As a result, we are constantly updating them.  The take away here it to make sure you have a detailed, well drafted power of attorney.  Don’t opt for the vague, 2 page, cookie-cutter documents printed off the internet.  It could easily be one of the most costly mistakes you ever make.

 

For more on the mistakes and oversights that can affect people and their families, take a look at our new book: The 10 Biggest Estate Planning and Asset Protection Mistakes People Make and How to Avoid Them! 2nd edition, now including the special bonus chapter, The Biggest Long Term Care Planning Oversights and Opportunities for Long Term Care

At the Estate Planning & Asset Protection Law Center, we provide a unique education and counseling process which includes our unique 19 Point Trust, Estate and Asset Protection Review to help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones, click here for more information. We provide clients with a unique approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

 

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: probate, durable power of attorney, trusts, power of attorney, transfer of assets, Wills

My Bank Says I Need A Guardianship for My Parents

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Thu, Jun 26, 2014

Power of Attorney, Massachusetts, Banks

 

Jane presented to the bank the power of attorney (POA) we had prepared and her parents had signed in our office 2 years ago.  It was a general durable power of attorney, giving Jane the ability to do banking on her parent’s behalf as well as other actions she might need to take in the future, such as accessing retirement accounts, life insurance policies, and real estate.

We tell clients to anticipate problems.  Financial institutions prefer that their customers sign a POA on their form in their presence.  Why?  Because it is easier for them.  They don’t have to worry about whether the POA is valid, whether the agent has the right to access the account on the principal’s behalf.   The bank told Jane that her parents would need to come into the branch with Jane to acknowledge the POA or sign a new one.

That, however, was not possible because her parents have advanced dementia and other issues that prevent them from leaving their home often.  Her mother is no longer competent to sign or acknowledge anything.  When Jane told the bank manager this, the manager replied, “well then you’ll need to apply for guardianship to access her account.  We don’t accept outside powers of attorney”.

What happened to Jane is not uncommon.  The bank was categorically rejecting all POAs.   Jane was understandably upset.  “What’s the point of having a power of attorney if banks won’t honor it”, she asked.  I completely understood her frustration.  I also know that the bank is wrong and it’s policy is in direct violation of Massachusetts’s power of attorney statute.

Next time I’ll tell you how we resolved it.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: power of attorney, Estate Planning, guardianship, 2014

I am Power of Attorney...Now What Do I Do? | Massachusetts Alzheimer's Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Wed, Dec 11, 2013

 

Alzhiemer's, Power of Attorney

Recently, I was asked to serve as agent under Power of Attorney for husband and wife clients.  We’ll call them Sam and Abigail.  Both are in their 80’s and just moved to a nursing facility.  As their legal representative, I will be doing the types of things that, as an elder care attorney, I so often advise our clients’ family members who serve in that role.  So I thought I would share with you the process that I am working through and the steps I now am, and will in the coming months, take to insure that Sam and Abigail are well cared for.

First, let me give you a bit of background.  Sam and Abigail live in a modest home which they told me they have owned for 50 years.  They have no children or family that they are close with.  Both are physically unable to navigate the stairs in their home or even leave their home without assistance.  But, my job is made easier because the reason they need nursing home care is because of their physical ailments, not mental ones.  Although at times their memory is a bit faulty they both were able to answer my questions and provide me with the information and documents I need to help them.

The first step was to have them both execute very specific powers of attorney that will allow me to conduct the transactions I will need to transition them to a nursing facility, pay their bills, sell their home and eventually ,if they outlive their funds, apply for Medicaid benefits on their behalf.  That document will be absolutely critical to my ability to help them.

When I visited their home, it was immediately clear why they could no longer remain there.  Sam was confined to a room downstairs that was converted to a bedroom.  Abigail still slept upstairs but I couldn’t imagine how she was able to make it up the stairs.  The home was in disarray.  Papers, clothing and other items were stacked or lying about everywhere.  It was obvious that the upkeep of a home was no longer within their capabilities.  And they knew it too.  The nursing facility was coming the next day to move them.

While visiting them in their home I wanted to take the opportunity to gather as much information about them as I could.  I asked Sam if he has a safe deposit box and if so what he keeps there.  He told me he and Abigail keep a box at the bank down the street from them.  That is where they keep their will and deed to their home.  It’s also possible there are other papers in the box that we’ll need so I was hoping he would remember where, in his home, he keeps the key to the box.  Luckily, he knew exactly where and directed me to it.

I asked about other assets such as stocks, bonds, mutual funds, and insurance policies.  He and Abigail both told me that they had bank accounts at three different banks totaling approximately $100,000 and that’s it.  They could only show me a single statement for one of the accounts, claiming that they discard the statements rather than save them.

I looked around and saw stacks of old papers, some going back 30 years or more.  There was only so much ground I could cover with them in a single visit.  I knew I would need to come back to the home another day so I focused my inquiries on their means of record keeping, where in the home.  At the conclusion of our meeting they gave me a key to their home.

Sam and Abigail settled in well in the facility a few days after I met with them.   Next time I’ll tell you about my second visit to their home, what I was looking for and what I found.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops, call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Click Here to Register For Our Trust, Estate & Asset  Protection Workshop

Tags: power of attorney, Estate Planning, Estate Planning, estate, 2013, 2014

Massachusetts Elder Law Attorney | The Need for Advanced Medical Directives Made Clear

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Fri, Jan 25, 2013

elder law, power of attorney, health care proxyThe following case study is designed to illustrate the importance of having up to date health care and disability documents.  As part of every estate plan, one should have the documents necessary to allow family members to make your health care and financial decisions if you are ever rendered unable to do so.  If you do not have the proper disability documents, you and your family will be forced to spend wait until the court process is complete to get a guardian and conservator appointed.  This can take considerable time and cost your family thousands of dollars.

 

            Mrs. Henry. Case Study

Mrs. Henry came to our office with a major issue.  Her husband, Mr. Henry, had slipped and hit his head very hard one night.  Ever since the fall, Mrs. Henry told us, her husband had been in a persistent vegetative state for nearly 3 months.  Mr. Henry, an engineer in his 60’s, had not executed the proper health care and disability documents prior to his fall and as a result, Mrs. Henry was not allowed to make any decisions or take any actions on behalf of her husband.  Important medical decisions were being left up to a team of doctors who had never met Mr. Henry and had no inkling of what he would have wanted.  Mrs. Henry wanted to be able to make decisions on her husband’s behalf.

After listening to this tragic story, we informed Mrs. Henry that the only thing we could do at this point was file to have her appointed as guardian and conservator for her husband.  The process would involve the preparation of detailed forms and then going to Court to file the documents and plead the case before a judge.  We would also be required to make sure all the forms will completed properly, so that the court would accept them.  The filing would also result in sensitive private information, like medical records and financial information, being made public record through the Court.

The process for getting Mrs. Henry appointed as guardian and conservator took several weeks and several court appearances.  Like most people, Mrs. Henry and her family were unaware of this lengthy legal process, which can be completely avoided by having the right documents.   If Mr. Henry had simply signed the appropriate paperwork, Mrs. Henry would have been able to immediately collaborate with her husband’s doctors on all necessary decisions.  Instead, she was forced to spend unnecessary time and money getting herself appointed as guardian and conservator so that she could get Mr. Henry moved to a facility that offered the appropriate level of care so he could begin his rehabilitation and recovery.

At the estate Planning & Asset Protection Law Center proper health care and disability documents are included with every estate plan.  This ensures that our clients leave our office with the peace of mind of knowing that should an unspeakable tragedy occur, like the one that Mr. & Mrs. Henry are enduring, their family will be able to make important decisions without the need to go to Court and without wasting time and money.  We even provide a service through which our clients’ emergency contact information as well as important disability documents are available to them 24/7.  No matter where they are or when something happens, knowing who to contact in an emergency and finding and accessing their crucial documents will not be an issue.  Many hospitals and financial institutions in the refuse to accept health care and disability documents that are more than one year old.  In response, we offer clients membership in our unique Lifetime Protection Program which helps them ensure their documents will be up to date and available when needed.  Members of the Lifetime Protection Program have their entire estate plan reviewed by our team of dedicated, caring professionals to ensure that the entire plan is still working towards accomplishing their goals, even in the face of ever changing laws and personal circumstances.

For more information on the critical importance of having up to date health care and disability documents or on how our team of professionals and our unique education and counseling process can help you and your family, please call our office at (781) 237-2815.

You Could Lose Everything  Unless You Act Now

Tags: power of attorney, health care proxy, HIPAA, Estate Planning, Health Care, durable power of attorney, advanced directives, Elder Law

Massachusetts Estate Planning Lawyer | 5 Estate-Planning Tasks That You Shouldn't Put Off

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Tue, Oct 16, 2012

Over time, your family will face a number of changes. From when you purchase your first home and your children are born to the time they leave for college and you plan for retirement and beyond, new issues and concerns arise. With proper planning your family will be prepared for life’s changes and challenges.

Please take the time to read this great article by Christine Benz called "5 Estate-Planning Tasks That You Shouldn't Put Off" which addresses estate planning to-dos that should not be placed on the back burner.

5 Estate-Planning Tasks That You Shouldn't Put Off

Here are the key estate-planning to-dos:

Task 1: Update Your Beneficiary Designations
Even if you've never set foot in an attorney's office, you've laid the groundwork for an estate plan if you've filled out beneficiary designation forms for your financial accounts. Those designations, in fact, trump other estate-planning documents when it comes to distributing your assets, so it's worthwhile to periodically review them to make sure they're up-to-date with your current situation--if you've gotten married or divorced, or example. (How would your spouse feel if you inadvertently left your 401(k) account to your brother?) And if you have drafted estate-planning documents such as a will, your attorney should be able to help you review your beneficiary designations to ensure that they sync up with those documents. This article (http://news.morningstar.com/articlenet/article.aspx?id=309885) provides guidance on beneficiary designation dos and don'ts.estate planning, estate-planning, lawyer, Massachusetts

Task 2: Designate Legal Guardians
Here's another step that's important regardless of asset level: Parents of young children should designate legal guardians who will look after their children if the parents should die or otherwise be unable to care for their minor children. Spouses often put off this step because they disagree about guardianship, but it helps if you can focus the discussion on actual child-rearing abilities and willingness to do the job. Don't get hung up on hurting anyone's feelings or bypassing friends or family members who might expect to be your guardians but aren't the best choice. (Naming someone a guardian because you're a guardian for their children isn't a good reason.) Most important, your guardian should be willing and able to take care of your children if the need arises, so an essential step is to discuss the responsibilities with the potential guardian and make sure he or she is on board. You also want your children's guardian to share you and your spouse's values and views on parenting; financial wherewithal should be a consideration, as well. It's also worth noting that it's possible to name two guardians--one to take care of your child's needs on a day-to-day basis and another to supervise the child's financial assets. But that's usually not practical for obvious reasons.

Task 3: Create a Living Will and Last Will and Testament
A living will is another document that's important no matter what your asset level is; it tells your health-care providers and your loved ones how you would like to be cared for if you should become terminally ill and unable to express your wishes yourself. Called a "medical directive" in some states, this document details your views toward life-support equipment. Not to be confused with a living will, a last will and testament details how you'd like your assets and possessions distributed after your death.

Task 4: Draft Powers of Attorney
Estate planning doesn't just relate to death and dying: A basic estate plan should also address what would happen to your affairs if you are still living but incapacitated. A power of attorney is a document that specifies who will handle your affairs if you are unable to do so. You'll need to draft two separate documents: one that names your power of attorney for health-care decisions and another for financial matters (often called a durable power of attorney). The person you entrust with your power of attorney for health care will, ideally, live in close geographic proximity to you and will also understand your general wishes about your own health care. The person who you name on your durable power of attorney form should be detail-oriented and comfortable with financial matters, and he or she should also have a general understanding about your attitudes toward and goals for your money.

Task 5: Name an Executor
Your executor will gather all of your assets after you're gone and make sure they are distributed in accordance with your will. Ideally, your executor will be someone who's comfortable with numbers and good with details, and will also be able to find the time to work on your estate. It's common to name family members as executors, but in more complicated situations it might be preferable to use a professional, such as a bank trust officer, to serve as your executor. It's a good idea to tell your executor that you've named him or her, and also provide details on how to obtain access to important documents, such as your will and a master directory detailing all of your accounts.

At the Estate Planning & Asset Protection Law Center, we help people and their families learn how to protect their home, spouse, life-savings, and legacy for their loved ones.  We provide clients with a unique educational and counseling approach so they understand where opportunities exist to eliminate problems now as they implement plans for a protected future.

We encourage you to attend one of our free educational workshops. Call 800-964-4295 and register to learn more about what you can do to enhance the security of your spouse, home, life savings and legacy.

Register Now and receive a free Unique Self-Guided 19-Point Trust, Estate, & Asset Protection Legal Guide with accompanying DVD!


 

 

Tags: power of attorney, living will, Estate Planning, Beneficiary, executor, Elder Law, lawyer, legal guardians, testament

Massachusetts Estate Planning Attorney | Powers of Attorney - 7 Things You Need to Include!

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Mon, Oct 08, 2012

Powers of Attorney - 7 Things You Need to Include!

Do You Have Them?


It never fails.

 

A prospective client comes into the office and is very old or very ill, or both.  The client proclaims they have powers of attorney.

 

We take one look at the powers of attorney and, with a gasp, realize that the documents they have are outdated and nearly worthless.power of attorney, medicaid, medicare

 

Why?

 

Because their powers of attorney are just "plain-vanilla".

 

There are no specific authorizations inserted for:

 

- public benefits planning, Medicaid, Medicare,  etc.

- Social Security elections

- retirement planning elections

- gifting for Medicaid benefits planning or tax planning

- account changes

- options for housing changes

- tax planning authority

 

Be careful though, some of these powers can create tax problems if not customized properly.

 

So, don't rely on old outdated powers of attorney that were done years ago with no forethought toward what is required during the senior years.

 

Remember, a long-term care spend-down can totally deplete remaining assets. This is what is most devastating to the middle class these days.

 

Get updated powers of attorney that have appropriate authorizations (especially long-term care authorizations).

 

Also, one must do this before mental incapacity closes the window of opportunity.

 

Don't rely on some old outdated documents that have been laying on the shelf for years. 

 

Bottom Line: What worked for you or a client at age 25,or even at age 50, may not work for you at age 65.

 

We have developed our Unique Self-Guided 19-Point Trust, Estate, & Asset Protection Legal Guide, so you can learn where problems may exist in your planning as well as opportunities for improvement and how to implement a plan to protect your spouse, home, family, and life savings.

Click Here to Download our Trust, Estate, & Asset Protection  Legal Guide

 

At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.

We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com

Tags: power of attorney, Medicare, social security, Medicaid, taxes, tax, middle class, incapacity

Massachusetts Estate Planning Attorney | Power of Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Tue, Sep 25, 2012

Do you know what legal documents you should probably have in place right now?

A Power of Attorney is one of the most important legal documents a person can have. Without a comprehensive power of attorney, many people are unable to handle their loved ones’ financial matters nor make health care decisions without seeking court intervention.elderly people

We often have clients come into our office assuming that just because their assets are titled jointly with their spouse, parent or partner, that they are able to liquidate accounts to pay bills, hire attorneys, sell their jointly titled real estate, etc. Unfortunately, that isn’t the case. In fact, we recently had a client come into our office who had a jointly titled investment account with his wife whom had just entered a nursing home. Without going into great detail, he did not have a power of attorney for his wife and was unable to transfer the assets into his name to do some Medicaid planning. Instead, he has to petition the court to become his wife’s Conservator and spent tens of thousands of dollars on her nursing home care when he could have, had she had a proper power of attorney, transferred the account into his name, alone, purchased an annuity for himself and qualified her for Medicaid immediately.

What is a Power of Attorney?

A power is a legal document where one person (the principle) authorizes another (the agent) to act on their behalf. There are financial powers of attorney which allow your agent to make decisions regarding your property and healthcare powers of attorney which allow your agent to make decisions regarding your health care needs. Your power of attorney can be broad in scope, giving your agent the ability to make any and all financial and personal decisions for you (a General Power of Attorney) or you can limit your agents authority by specifying the types of decisions you would like them to make on your behalf (a Limited Power of Attorney).

You also have a choice whether you would like your agent to have the ability to make decisions both now and if you become incompetent (a Durable Power of Attorney) or your agent can be limited to make decisions only when you become incompetent (a Springing Power of Attorney).

What is a Guardianship?

Guardianship is a legal relationship whereby the Probate Court gives a person (the guardian) the power to make personal decisions for another (the ward). A family member or friend initiates the proceedings by filing a petition in the Circuit Court in the county where the individual resides. A medical examination by a licensed physician is necessary to establish the condition of the individual. A Court of law then determines the individual is unable to meet the essential requirements for his or her health and safety and appoints a guardian to make personal decisions for the individual. Unless limited by the court, the guardian has the same rights, powers and duties over his ward as parents have over their minor children. The guardian is required to report to the court on an annual basis.

What is a Conservatorship?

A Conservatorship is a legal relationship whereby the Probate Court gives a person (the conservator) the power to make financial decisions for another (the protectee). The Court proceedings are very similar to those of a Guardianship except the Court of law determines an individual lacks the capacity to manage his or her financial affairs and appoints a conservator to make financial decisions for the individual. Often the court appoints the same person to act as both the guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court on an annual basis.

The Differences

A power of attorney is a relatively low cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself.

If you do not have a power of attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Guardianship and/or Conservatorship. A court proceeding is not only costly, but the person appointed as your Guardian/Conservator may not be the person whom you would have chosen yourself. And, as stated above, not having a properly drafted power of attorney could significantly limit financial and/or Medicaid planning that could be done on behalf of the principle.

At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.

Gain instant free online access to Seniors’ Guide to Health Care Reform & Avoiding Nursing Home Poverty, which contains information on how Massachusetts Seniors will be impacted by the Affordable Care Act, by clicking here

Click Here to Download the Senior & Boomers Guide to Health Care Reform & Avoiding  Nursing Home Poverty

We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com.


 

Tags: power of attorney, Estate Planning, asset protection, Medicaid, Health Care, durable power of attorney, guardianship, conservatorship, Massachusetts, transfer of assets

Review Your Estate Plans Regularly | Massachusetts Elder Law Attorney

Posted by Massachusetts Estate Planning & Elder Law Attorney, Dennis B. Sullivan, Esq., CPA, LLM on Mon, Aug 13, 2012

There are many reasons why it is crucial to have your estate plan reviewed. A proper estate plan must be modified to account for legal and tax changes, as well as life changes.

"While certain basic principles have held true over the years, new strategies are constantly developed and legislative changes alter the law and how it is applied. Proper estate planning is rarely a one-time event. Besides accounting for legal changes, the plan must be modified to account for life changes — birth, death, divorce, finances and health" -- Bonnie Kraham, Elder Law Attorney

 

estateplan family

"There is a tendency to view elder law estate planning as a static process resulting in a permanent portfolio. Both are misconceptions.

While certain basic principles have held true over the years, new strategies are constantly developed and legislative changes alter the law and how it is applied. Proper estate planning is rarely a one-time event. Besides accounting for legal changes, the plan must be modified to account for life changes — birth, death, divorce, finances and health.

Also, when a plan is created poorly the first time, often by those without direct experience in this area of the law, it is often necessary for those more experienced in elder law estate planning to fix the "broken" plan.

One of the more common errors we see is a purported MAPT, a Medicaid asset protection trust, that does not comply with Medicaid law. Sometimes, such a trust states that the grantors (Mom and/or Dad) are also the trustees, which is not allowed. Other times, the trust gives the grantors access to principal in trust assets. This also is not allowed.

The common fix for a defective MAPT is creating a new one that follows the law: The grantors may not be trustees, and the grantors have a right to income only from trust assets. They have no right to principal. The downside of starting over is that the five-year "look-back" period must lapse before the assets in the trust are protected. However, the current situation must be assessed to determine if the new MAPT makes sense.

Even the best of plans may be obsolete by the time they are needed, sometimes many years later. At a minimum, an estate plan should be reviewed every three years to see if any life or law changes affect it.

Over time, clients may want to change their backup trustees or plan of asset distribution. They may wish to add inheritance trusts to keep assets in the family. They might wish to change from a revocable trust to the MAPT because they were unable or unwilling to obtain adequate long-term care insurance. Assets for married couples may have grown to more than $1 million and the couple may need estate tax protection.

A systematic updating approach allows the client to have a plan better suited to their current needs. Periodic review reduces the chance of broken elder law estate plans.

If you're competent, you can always update your plan by either amending a trust or signing a new will, power of attorney or health care proxy.

If you are not competent but have an elder law power of attorney with broad gifting powers, your agent under the power of attorney may create, amend or revoke a trust, and make other changes in your best interest, including protecting assets from nursing home costs. The goal is to avoid the last resort, which is a court proceeding to fix a broken plan, or worse, having a plan whose purpose is defeated."

Article Reference:
"Protecting Your Future: Revise Estate Plans Regularly to Meet Needs" by Bonnie Kraham
Link: http://www.recordonline.com

 

At the Estate Planning & Asset Protection Law Center of Dennis Sullivan & Associates, we help people and their families concerned with losing their homes and life savings to increasing medical and nursing home costs, taxes and the costs and time delays of probate. We also protect clients from losing control of their own health and financial decisions.

Research shows that 86% of trusts don’t work.  That’s why we developed our Unique Self-Guided 19-Point Trust, Estate, & Asset Protection Legal Guide, so you can learn where problems may exist in your planning as well as opportunities for improvement and how to implement a plan to protect your spouse, home, family, and life savings. 

 

Click Here to Download our Trust, Estate, & Asset Protection  Legal Guide

 

 We encourage you to attend one of our free educational workshops to learn more about our process and what you can do to enhance the security of your spouse, home, life savings and legacy. To register for a seat at an upcoming workshop call (800) 964-4295 (24/7) or register online at www.SeniorWorkshop.com.

 

 

Tags: power of attorney, health care proxy, HIPAA, Estate Planning, probate, Protective Trusts, Nursing Home Costs, Elder Law, Medicaid, Nursing Homes, durable power of attorney, Beneficiary, elder care, seniors, estate, estate tax

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