Attorney Abigail V. Poole

Hitting “Pause” on Creditors’ Claims Against Massachusetts Estates

September 23, 2020 by Attorney Abigail V. Poole

by Abigail V. Poole

As the Personal Representative (Executor) responsible for administering the estate of a deceased family member or friend, one of your most important tasks is to determine the debts of the deceased and whether they can or should be paid as part of the estate settlement process. This is especially true if the estate may be insolvent because the deceased died with significant debt due to failure to pay income taxes or credit card bills, or the deceased was the recipient of Medicaid (MassHealth) long-term nursing home care benefits.

Massachusetts law governs the order in which debt is to be paid to the so-called “creditors” of the estate, and certain creditors take priority over others. If you improperly pay some creditors out of order as Personal Representative, you may be personally liable to pay those that should have been paid but were not.

Under Massachusetts law, general (unsecured) creditors have one (1) year from the date of death to file a claim against an estate. An example of a general creditor is a collection agency attempting to obtain payment on outstanding credit card debt. The collection agency must take specific action within the one-year period to legitimize the creditor’s claim for payment of the debt. If the creditor does not take the proper steps within that period, the creditor will be foreclosed from seeking payment from the estate. In other words, as Personal Representative you know that after the one-year anniversary date of the deceased’s death, creditors who have not taken the proper steps to legitimize their claims have lost their rights to enforce payment of the debt against the estate.

The COVID-19 pandemic has complicated this simple deadline. Under the Third and Fourth Updated Orders issued by the highest court in the Commonwealth of Massachusetts (the Supreme Judicial Court), the “pause” button was hit from March 17, 2020 through June 30, 2020 (106 days) on a number of such “deadlines”, including the creditor claims period applicable to estates. The button was “unpaused” as of July 1, 2020. What this means is the number of days remaining until the one-year claims period ends as of March 17, 2020 are added to the number of days remaining as of July 1, 2020. For example, if the deceased died on January 1, 2020, in normal circumstances the creditor claims deadline would be January 1, 2021. Due to the COVID-19 Order, the deadline is extended 106 days to April 17, 2021, and creditors have until that date to file claims against the estate. The Supreme Judicial Court may order another extension if there is a new surge of COVID-19 cases in the Commonwealth.

The extension of the creditor claims deadline impacts the timing of the other steps necessary to settle an estate. If the Personal Representative decides that an Account itemizing the income and expenditures of the estate should be filed with the Court in order to release the Personal Representative from liability, such filing will be delayed until the extended deadline passes. There may also be a delay in making final distributions to the beneficiaries of the estate.

If you are the Personal Representative of an estate in Massachusetts, keep in mind this COVID-19-related impact on the claims of creditors who may be owed money by the deceased, and on the timing of estate settlement activities, and follow the advice of your estate planning attorney regarding the payment of claims.

At Samuel, Sayward & Baler LLC, we counsel families on the legal and tax matters that are necessary after the death of a loved one. You can request a consultation regarding estate administration with Attorney Poole by telephone at 781-461-1020 or visit our website at https://ssbllc.com.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters. She is an active member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.

September, 2020

Five Things To Do Soon After A Loved One Passes Away

July 8, 2020 by Attorney Abigail V. Poole

Although the number of COVID-19 cases is surging in other parts of the country, thankfully here in Massachusetts we continue to see a slow and steady decline. Hopefully, this trend will continue. Nevertheless, there are sadly still individuals who are becoming infected with COVID-19 and dying from complications due to the virus, reluctance to seek treatment for other health issues, or for a myriad of other reasons. What should I do when a loved one passes away may be a question that you unfortunately have to ask yourself. Whether a loved one’s passing is expected or unexpected, managing his or her affairs can be difficult to think about while dealing with the grief and loss of a loved one. Here are five steps to provide some guidance on what to do soon after a loved one’s death, in no particular order:

1. Arrange Burial and Memorial Services According to the Loved One’s Wishes

If the deceased was forward-thinking enough to pre-arrange and/or pre-pay his or her funeral when also preparing his or her estate plan, then contact the funeral home with which these arrangements were made. If no plan was put in place before death, contact a reputable funeral home to guide you through the burial and memorial service process. Keep in mind that currently funeral homes are open for business but have adjusted to function within the Governor’s pandemic guidelines. This generally means that services may include no more than ten family members. Several of my clients have decided to hold off on a memorial service until such time that it is possible to host a larger gathering in honor of their loved one.

As part of an estate plan, the deceased may have prepared a Directive as to Remains. A Directive as to Remains is a document that instructs the deceased’s Personal Representative (Executor) to arrange the deceased’s burial or cremation and funeral/memorial services as directed in that document. Your loved one alternatively may have written down similar wishes in a letter of instruction. Carefully review your loved one’s estate planning documents to learn if the deceased left such instructions so that his or her wishes are carried out.

2. Find and Organize Important Documents

Hopefully your loved one showed you where he or she keeps important documents like his or her Will, income tax returns, financial account statements and bills that are regularly paid. This information will be necessary for the proper services and administration of the deceased’s estate. Locate a safe but easily accessible place where you can store this information as you will refer to and use it often. Do not throw away any financial records or legal documents until you know you will not need them for tax filings, asset valuation, or other purposes.

3. Secure Property of the Estate

Your loved one may have several different types of assets in his or her estate at death. In every case, the Personal Representative (or Trustee if there is a Trust) is responsible for ensuring the deceased’s property is secure and protected for the beneficiaries of the estate. For example, it is important to safely store valuable jewelry and artwork. Similarly, any real estate should be securely locked (perhaps even change the locks) and regularly visited. In fact, it is an obligation of the Personal Representative to do so, and he or she may be liable if such measures are not taken and damage occurs to the property. The Personal Representative should also maintain or obtain insurance in connection with the deceased’s assets, as necessary, and may need to have some or all of them appraised for estate administration and/or estate tax purposes.

4. Contact an Estate Planning and Administration Attorney

The settlement of an estate can be incredibly complex depending on the assets and beneficiaries involved, and the provisions of the deceased’s estate plan. The Personal Representative should contact an attorney to guide and assist him or her through the process of completing and filing the required documents to be appointed as Personal Representative by the probate court, gathering assets, paying appropriate expenses, and making distributions, to avoid failing to fulfill his or her obligations. This is especially important if the estate assets are valued at over $1 million and a Massachusetts estate tax will be payable, or if it is anticipated that MassHealth (Medicaid) may file a claim against the estate to be reimbursed for any MassHealth benefits (for home care or nursing home care) received by the deceased during his or her lifetime.

Keep in mind that the administration of an estate typically takes at least one year so you may want to take the tortoise’s point of view – slow and steady wins the race.

5. Communicate and Work Together

On top of the issues mentioned above, estate administration can be made more difficult if there are strained relationships between the beneficiaries, which often also includes the person who is serving as Personal Representative. Perhaps there is a history of family disharmony. Perhaps multiple beneficiaries are sentimentally attached to mom’s diamond engagement ring and they must decide who gets to keep it. The only person who wins when there are disagreements between beneficiaries that cannot be resolved is the attorney who gets paid to resolve them via negotiation or court action. Instead, consider embracing the three C’s as much as possible when working with each other: Communication, Cooperation and Compromise.

Estate administration can be a juggling act where the Personal Representative is managing several different responsibilities all at once, including fulfilling the wishes of the deceased and the Personal Representative’s obligations to the beneficiaries. An estate planning attorney knowledgeable in the process of estate administration can guide you through that process in a correct and efficient manner, so that you have peace of mind when all is complete, hopefully with family relationships intact, which is most likely what your loved one would have wanted when setting up his or her estate plan.

July, 2020

What Are Five Things You Wish You Had Done Before The Pandemic?

May 1, 2020 by Attorney Abigail V. Poole

Like so many of you, I am connecting with friends and family by telephone and videoconference to maintain my sanity and do my best to stay at home for the safety of our vulnerable community members and frontline workers during the COVID-19 pandemic. During a few of my calls, I have noticed that some of my friends and family are now thinking about creating a legacy plan or updating their estate plan along with other things they wish they had done before the pandemic. Luckily, it is not too late to accomplish many of those things, and hopefully it is simply a matter of time and patience before they can do the others. Here are a few of the (somewhat tongue-in-cheek) things my friends and family have mentioned they wish to have done before the pandemic:

1. Prepare Estate Planning Documents

Several family members and friends are using the pandemic as the impetus to take their estate plan out, brush off the dust, and review it to confirm it reflects their current family circumstances and wishes for their legacy. Others are creating an estate plan for the first time. Regardless of which situation applies to you, it is important that you have the basic “don’t leave home with them” documents in place. You should have a Power of Attorney that appoints a person to make financial decisions on your behalf if you are incapacitated. Likewise, a Health Care Proxy that names an individual to make health care decisions if you are unable to do so yourself is imperative. A HIPAA Authorization form, which allows the people you name on it to receive medical information about you is particularly relevant, too. Lastly, a Last Will and Testament that appoints a person to manage your assets and distribute them according to your wishes is a must have for most people, and remember -where there is a will, there is a way!

2. Discuss Wishes with Agents and Family Members

Let’s face it – thinking about your own demise can be saddening, depressing, scary and difficult. Talking about it can be even more so. However, the pandemic is causing many of my family members and friends to think seriously about their wishes in case they become ill and do not recover. They are having conversations with or providing written instructions to the individuals appointed in their estate planning documents (their agents) and family members about what they would want to happen in the event they become incapacitated or pass away. One way to ease into the conversation is to create a list of resources that you want your family to reach out to if you fall ill or pass away, such as care management agencies, attorneys, rehabilitation centers, or funeral homes you favor. Doing so may give you a sense of control during these uncertain times and the peace of mind that you, your family, and your estate will be taken care of the way you intend if something happens.

3. Be Prepared: Maintain a Well-Stocked Pantry (and Other Useful Non-perishables – Toilet Paper, Anyone?)

The pandemic has highlighted the importance of being prepared for the unexpected and emergencies. One way to be prepared is to maintain a supply of items you consider necessities as best you can. I have a much greater appreciation now for readily available toilet paper, hand soap, cleaning supplies, flour and yeast. Beyond pantry items and cleaning items, basic medical supplies such as gloves, masks, bandages, antibiotic ointment, medication, etc. are clearly helpful to have on hand. Of course, it is important to thoughtfully collect items – keep in mind to purchase only what you require as other people likely need them, too.

Consider what estate planning and legal documents should be accessible to family members, designate a location for the documents and share the location with your family members and/or friends. Perhaps keep electronic copies of your legal documents available on your cell phone or a USB drive. Remember to share a copy of your health care proxy (paper and/or electronic) with your named health care agent(s).

Another way to be prepared is to consider having a “go bag” with essentials you might need in case you have to leave your home suddenly, and/or a family member or friend needs to assist you at home because you are ill. For example, keep toiletries, clothing, copies of relevant legal documents, an extra cell phone charger, and entertainment materials in the go bag.

4. Embrace Social Events (and Family and Friends!) More Often

Continue to use this opportunity to spend time with family members and friends in innovative ways – virtual game nights, virtual family yoga sessions, or simply sharing your favorite books, movies or television shows with each other. Think about the activities you did in the past that you look forward to enjoying in the future. For example, some of my friends wish they had swum more often and plan to make time for swimming at their community pool once that is possible again. Other friends wish they had traveled and explored new places more, whether by visiting a festival in a nearby town, camping in another state, or hiking ancient ruins in a country halfway across the world.

Once the pandemic is over, say yes to invitations and events, no matter how big or small. And give and get hugs! In short, engage and embrace your loved ones and living life fully again.

5. Remember That You Are A Member of A Community

One of my friends remarked that she wishes she had paid more attention to the news. Her insightful comment illuminates the larger message that is currently being heard far and wide: we are all connected and in this together. Invest some time in being an observant, active and considerate participant in your town, state, country and the world, and leave a legacy of kindness. Listen or watch local and international news and contribute when and where you are able. There are countless examples of people helping others by delivering groceries to elderly neighbors to musicians sharing hopeful songs on social media. How can you safely help others?

I hope you are finding productive and helpful (and enjoyable) ways to manage the “new normal” caused by the pandemic. Whether you are taking this time to focus on your estate plan and preparedness, or discussing the serious and silly stuff with family and friends, or helping others, please be safe and well.

May, 2020

Five More Important Numbers to Know When Applying for Long-Term Care Medicaid Benefits

March 1, 2020 by Attorney Abigail V. Poole

Back in December, I wrote about in the event you require Medicaid (MassHealth) benefits to pay for long-term nursing home care expenses. To remind you, Medicaid is a federal/state government health care benefits program available to those who meet its medical and financial eligibility rules. Here are five more important numbers to keep in mind if you are applying for long-term care Medicaid benefits in Massachusetts.

An Account with $1,500 for Burial or Funeral Expenses is a Non-Countable Asset.

As you are preparing to apply for MassHealth benefits you may “spend down” your assets in certain ways and still qualify. One way of spending down your assets is converting countable assets into non-countable assets. For example, MassHealth permits you to have a separate bank account of up to $1,500 for funeral and burial expenses. This is in addition to the $2,000 a single person is permitted to own to qualify for MassHealth benefits. For example, let’s say you have a checking account with a balance of $3,500, which results in your ineligibility because you are over the $2,000 limit. Now let’s say you open a burial and funeral expenses account and deposit $1,500 into it. As you have only $2,000 remaining in your checking account you now meet the financial eligibility requirements to receive MassHealth benefits, and, bonus, you have put aside funds to assist with expenses after your death. This account is in addition to any prepaid irrevocable funeral arrangements you may make.

Your Principal Residence’s Equity Up to $893,000 is a Non-Countable Asset (for 2020).

Is my home considered a non-countable asset for Medicaid? If your principal residence is located in Massachusetts and your equity interest in the residence does not exceed $893,000 (for 2020), then it will be considered a non-countable asset for Medicaid benefits eligibility purposes. This equity interest amount typically changes each year. If your equity interest in your home is greater than that amount, it may cause you to be ineligible for Medicaid benefits, and you may need to sell your home or spend down the equity prior to or while your eligibility for Medicaid benefits is determined. However, if you make a good faith effort to sell your home Medicaid may exempt it from being countable for a period of nine (9) months, which time period may be extended. Further, MassHealth may waive the period of ineligibility due to your home’s excess equity if it may cause undue hardship.

Let’s say your home has a tax-assessed value of $1,000,000 and you own it free and clear. In that case, MassHealth would consider you ineligible for benefits because your home equity exceeds $893,000. Now let’s say you have a $250,000 mortgage on your $1 million home resulting in the equity interest in your home being $750,000. You are eligible for MassHealth benefits. Note that your home may be a non-countable asset immediately, regardless of your equity interest in it, if your spouse resides with you, or you have a child who is under age 21 or blind or permanently disabled, a sibling with ownership interest, or an adult child who is taking care of you and meets specific requirements residing with you. There are other things to know about Medicaid benefits for seniors and your home that are discussed here.

You May Keep $72.80 of Monthly Income as Your Personal-Needs Allowance (PNA).

In general, your monthly income will be paid to the nursing home (the “Patient Paid Amount”) once you begin to receive MassHealth benefits, with some permissible deductions. One permissible deduction is the Personal-Needs Allowance of $72.80, which amount has not changed in several years. You are permitted to keep the Personal-Needs Allowance in Massachusetts (PNA) to be used for any personal expenses not covered by Medicaid. You can pay for clothing, salon visits, etc. from your PNA account.

Other typical permissible deductions from income are health or medical insurance premiums and support for children, parents, siblings or your spouse remaining at home who meet certain criteria.

4 to 6 Months (or Longer) from MassHealth Application Submission to Approval.

It can take a few months to prepare a MassHealth application and gather the information you need to submit along with the application. Once you have submitted the application and documentation to MassHealth it may take 4 to 6 months, or longer depending on your circumstances, to obtain approval to begin receiving Medicaid benefits. During that time period you will receive correspondence from MassHealth requesting additional information to be provided to them. The initial determination you receive from MassHealth on your application may be favorable or unfavorable. If the determination is unfavorable an appeal may be filed with the Board of Hearings.

There Are 26 Aging Services Access Points (ASAPs) in Massachusetts.

Aging Services Access Points (ASAPs) are private, non-profit agencies that contract with the Executive Office of Elder Affairs and cover 26 separate geographical regions in Massachusetts. They provide home care services, investigate elder abuse and assist with health insurance benefits, including Medicare inquiries and MassHealth applications. The local ASAP is Health and Social Services Consortium, Inc. (HESSCO) which covers the towns of Canton, Dedham, Foxborough, Medfield, Millis, Norfolk, Norwood, Plainville, Sharon, Walpole, Westwood and Wrentham. Although ASAPs are a great source of information, it is always best to consult with an experienced elder law attorney before having anyone prepare a MassHealth application on your behalf, to ensure you are receiving appropriate advice about the timing of the submission of the application as well as any planning steps you may wish to take to achieve eligibility. In many cases, having an elder care or long-term care attorney prepare the application will be in your best interest, and give you the greatest chance of success.

Meeting the financial eligibility criteria to receive Medicaid benefits to pay for long-term nursing home care expenses can be confusing and difficult depending on your assets, health and family relationships. An experienced long-term care and elder law attorney can assist you with advance planning to preserve your assets, address your questions and concerns, and prepare you and your family to navigate the eligibility process.

March, 2020

The Do’s and Don’ts of Estate Planning According to the Movie Knives Out

January 15, 2020 by Attorney Abigail V. Poole

Over the holidays, I had the pleasure of seeing the movie Knives Out in the theater. Knives Out is about an elderly author who dies shortly after a family gathering, and the subsequent inheritance of his multi-million-dollar estate. The plot slowly reveals that the author’s death and his relationships with his family members and employees may not all be as they first seem. Naturally, I was curious to see the extent of artistic license taken versus my “real world” perspective as an estate planning attorney and probate administration attorney with regard to the inheritance and dealing with large estates. Here are a few do’s and don’ts of estate planning according to the movie Knives Out in comparison to the actual practice of estate planning and administration (warning – spoilers ahead).

Do Update Your Estate Plan Regularly to Reflect Your Wishes. In the movie, the author updates his Last Will and Testament shortly before his death and drastically changes who will inherit his estate from his family to an employee, thereby cutting off his family members from receiving any portion of his estate.

Practically, his family members could contest his Last Will and Testament in court for several different reasons in an effort to invalidate the Will and inherit the estate instead. To combat an anticipated challenge to the Will, a so-called “no contest” provision (also known as an “in terrorem” or “poison pen” provision) may be included in a Will. The no contest provision basically states that if any person who stands to inherit a portion of your estate challenges the Will he or she will receive nothing. Such a provision is most effective when a person has something to lose in the event of a contest and it is clear that the Will creator intended to include the provision. Not all states recognize these provisions as valid but Massachusetts does. Incidentally, part of Knives Out was filmed in Massachusetts at the Ames Mansion in Borderland State Park located in the towns of Easton and Sharon.

Don’t Tell Your Family Members That They Are Disinherited Otherwise It May Result in Your Untimely Demise If You Are A Rich Author. The author tells some of his family members that they are disinherited from his estate and will no longer receive financial support from him while he is alive. This leads to the author’s demise, which is investigated by an eccentric and cunning southern gentleman detective to determine if the author was, in fact, murdered, and by whom. The detective’s quest to discover the murderer leads him to the employee who is named to inherit the estate, which brings us to the last avenue by which the family could inherit the author’s estate: the so-called “slayer statute”. Under the slayer statute, if the person who stands to inherit from an estate is convicted of the deceased’s first-degree murder, second-degree murder or manslaughter, he or she is prohibited from receiving the inheritance (G.L.c. 265, §46).

In reality, it is your decision as to the information you wish to share with your family members about your estate plan. If it is important to you to be transparent about your wishes and you are comfortable sharing that information, you may wish to speak with each family member alone or hold a family meeting or simply provide copies of your estate plan. At the very least, provide your family members with your estate planning attorney’s contact information so they know who to call for guidance after your death.

Do Share Information About The Inheritance After The Person’s Death If You Are The Personal Representative. The Personal Representative (Executor) of the deceased’s estate must administer the estate according to the deceased’s Will or the state intestacy laws. One of the Personal Representative’s administrative duties is to inform those who will be receiving inheritances from the estate. The Personal Representative should work closely with an attorney to administer the estate properly, including filing probate pleadings, to ensure he or she completes all the necessary tasks according to certain deadlines to reduce the risk of liability.

Don’t Expect A Reading of The Will To Learn About Your Inheritance. The reading of the author’s Will is a pivotal and dramatic moment in Knives Out. In reality, readings of Wills rarely take place after the deceased’s death. Instead, copies of the Will are provided to the recipients of the estate by the Personal Representative. Additionally, the original Will is filed with the probate court along with the pleadings and becomes public record.

If you have some free time and enjoy movies with well-crafted dialogue delivered by a talented multigenerational cast, surprising plot twists and turns, and filmed in Massachusetts, I suggest you see Knives Out. It is not only entertaining but also highlights the importance of having an up-to-date estate plan in place.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters such as long-term care planning. She is an active member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

January, 2020

Five Important Numbers to Know for Long-Term Medicaid Benefits

December 1, 2019 by Attorney Abigail V. Poole

“What happens if I need long-term care in a nursing home and I can’t afford to pay for it?” I hear this question frequently from clients who are concerned about long-term care because the cost of nursing home care is so high. In Massachusetts, nursing home care costs anywhere from $11,000 to $17,000 per month ($132,000 to $204,000 per year) and continues to increase regularly. The short answer is Medicaid (MassHealth), a joint federal/state government benefits program, will cover your long-term care nursing home expenses so long as you meet the medical and financial eligibility criteria for the program. Here are 5 important numbers to keep in mind with respect to eligibility for long-term care Medicaid benefits in Massachusetts.

You Must Be 65 Years of Age or Older.

The first hurdle to apply for and receive Medicaid long-term care benefits is that you must be 65 years of age or older.

You May Not Have More Than $2,000 of Countable Assets.

Medicaid has strict limitations with regard to the value of assets an individual may own and qualify for long-term care Medicaid benefits to pay for nursing home care. Assets may be deemed to be “non-countable,” “inaccessible” or “countable.” Countable assets include assets such as bank accounts, investments, most retirement accounts and the cash value of life insurance, to name a few. An individual may have only $2,000 in countable assets in order to be eligible for long-term Medicaid benefits. Non-countable assets include pre-paid burial accounts, one automobile and a primary residence. Inaccessible assets are less common and include things like the proceeds from a lawsuit that has not yet settled or an anticipated inheritance during the estate administration phase and before distribution. Countable assets above that $2,000 threshold must be spent down (in permissible ways) before eligibility will be achieved.

A Spouse Living in the Community May Keep an Additional $126,420 of Countable Assets.

If the individual who is residing in the nursing home and applying for Medicaid benefits has a spouse who is living in the community (i.e. not in a nursing home) that community spouse has asset limitations, too. The spouse is allowed to own only $126,420 of countable assets for 2019. This amount, called the Community Spouse Resource Allowance (CSRA), is typically increased every year. This means that a married couple living in Massachusetts may have a combined total of $128,420 in countable assets (2019). If they have additional countable assets, such as an investment account or an IRA worth $100,000, then those funds must be spent down before the nursing home spouse will be eligible for Medicaid benefits. An experienced elder law attorney can advise a married couple of options for dealing with excess assets in this situation.

Beware the 5-Year Look Back Period!

An important thing to remember about Medicaid benefits eligibility is that Medicaid will review any transfers of your assets made within the five years (60 months) prior to the Medicaid application. This is often referred to as the 5-year look back period. Medicaid can request copies of account statements for the last five years to check for gratuitous transfers. For example, if you gifted $15,000 to your child three years prior to applying for Medicaid benefits, Medicaid will view this as a disqualifying transfer of funds because you could have otherwise utilized that money to cover a month of your nursing home expenses. Disqualifying transfers made within the 5-year look back period will result in a period of ineligibility.

The Applicable Divisor is Currently $367.21 Per Day.

Medicaid determines the period of ineligibility for Medicaid benefits due to a disqualifying transfer by dividing the value of the asset transferred by the average daily cost of a nursing home as determined by the state. As of November 1, 2019, this transfer divisor is $367.21 per day in Massachusetts. This means that $15,000 you gifted to your child three years ago will result in 41 days of ineligibility for Medicaid benefits to you now. But here’s the kicker – the disqualification period only begins to run once you have no more than $2,000 of countable assets. This means that after all of your funds are spent, you will then be ineligible for Medicaid benefits for 41 days. This is a serious ‘trap for the unwary’ and why long-term care planning is so important.

Another trap for the unwary can occur when someone has made a large gift, such as putting the house in the children’s names, and then applies for Medicaid benefits prior to the expiration of five years. In that case, the ineligibility for Medicaid benefits can extend well beyond five years from the gift.

The financial eligibility rules for long-term Medicaid benefits are complex and everyone’s situation is unique. The elder law and medicaid planning attorneys at Samuel, Sayward & Baler LLC can assist you with planning in advance to preserve your assets for your family in the event you require Medicaid long-term nursing home care benefits and can help you prepare to navigate the Medicaid application process.

Attorney Abigail V. Poole is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate settlement and elder law matters such as long-term care planning. She is an active member of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

December, 2019

Planning Now For Long-Term Care After Incapacity

October 1, 2019 by Attorney Abigail V. Poole

A big concern of many of my estate planning clients is what happens if they need long-term health care in a nursing home but they cannot make important financial and health care decisions on their own anymore due to dementia, serious injury or prolonged illness. This is especially relevant if Medicaid (MassHealth), the federal/state program that provides benefits to pay for long-term nursing home care expenses, will be necessary. There are two essential estate planning documents that you can complete now to alleviate these concerns: a Power of Attorney and a Health Care Proxy.

A Power of Attorney appoints a person called an attorney-in-fact to make financial decisions on your behalf when you cannot do so yourself. A Health Care Proxy appoints a person called a health care agent to make health care decisions for you if you are unable to do so yourself. Both documents should include specific language to give your appointed agent the authority to manage your long-term care in a nursing home. Below are a few of the provisions that should be included in these documents.

Power of Attorney

Your Power of Attorney should be comprehensive in order to address anticipated and unanticipated long-term care circumstances. For example, the Power of Attorney should include language that permits your attorney-in-fact to complete an application for Medicaid benefits on your behalf and appeal any denial of benefits for you. Your attorney-in-fact should also have authority to sign nursing home agreements on your behalf. However, it is important your attorney-in-fact’s authority is limited so that he or she cannot sign an agreement that restricts your rights (or the rights of your estate) to pursue litigation in the event you suffer harm; many of these agreements mandate arbitration and/or mediation in the event of the nursing home’s illegal or harmful actions toward you. A new federal rule attempts to curtail mandated arbitration in agreements but does not ban it outright. Additionally, it may be appropriate for your Power of Attorney to give your attorney-in-fact the authority to make gifts of your assets, and designate beneficiaries of bank accounts, retirement accounts, annuities and life insurance policies. The Power of Attorney may also include provisions that allow your attorney-in-fact to change your estate plan. The purpose of these provisions is to permit your attorney-in-fact the flexibility to appropriately manage, transfer, or spend down your assets to qualify you for Medicaid benefits, if necessary. Your Power of Attorney can be drafted so that only certain attorneys-in-fact have the authority to take specific actions, and only certain family members can receive gifts of your assets. Although these powers may not be appropriate in every case, if you anticipate that you may wish to apply for Medicaid benefits in the future, your Power of Attorney should contemplate that these types of actions may be necessary.

Health Care Proxy

Your Health Care Proxy should include the standard powers given to your health care agent under Massachusetts law. The Proxy should also contain expanded powers to permit your health care agent to assist with long-term care matters, with the goal of eliminating the need to petition the court to appoint a guardian to make health care decisions on your behalf in certain situations. For example, your Proxy should give your health care agent the ability to authorize the administration of medication, employ and terminate the employment of doctors and other medical providers, admit and discharge you from a medical facility, and sign a MOLST (Medical Order for Life-Sustaining Treatment) on your behalf. In the event it is necessary to go to court, the Proxy’s expanded powers clearly express your wish to give your agent the authority to take certain actions and may simplify the appointment process.

If you already have these documents, I recommend that you contact an attorney experienced in elder law and estate planning to review them to ensure that the necessary long-term care planning provisions are included. If you do not have a Power of Attorney or Health Care Proxy and wish to learn more about them from an estate planning attorney in a one-on-one meeting, an attorney at Samuel, Sayward & Baler LLC can meet and discuss these documents with you. Alternatively, you may join Attorneys Suzanne R. Sayward and Abigail V. Poole on Thursday, October 17^th at 1:00 p.m. for a presentation on this topic at the Dedham Senior Center located at 735 Washington Street, Dedham, Massachusetts. Please RSVP to Courtney Daly at (781)326-1650.

October, 2019

Five Basic Facts About Revocable Trusts

July 1, 2019 by Attorney Abigail V. Poole

A client recently asked me, “What is the difference between a revocable trust and a living trust?” The short answer is there is none; revocable trusts and living trusts, sometimes also called revocable living trusts, are all different names that describe the same thing. You might ask your attorney, “What is a revocable trust?” A revocable trust is an entity that may be created as part of an estate plan to own certain assets during a person’s lifetime (and after the person’s death) and direct the distribution of those assets at death. Here are five basic facts to know about revocable trusts if you are thinking about using them in your estate plan:

Revocable Trusts Create Three Positions To Do The Job

Revocable trusts create three positions that interact with each other during the existence of the revocable trust. The Grantor is the “creator” of the revocable trust, and is also known as the Donor or Settlor. The Trustee is the “manager” of the revocable trust and any assets held in the revocable trust. The assets in the revocable trust are held for the benefit of the trust Beneficiary. One or more people can fill all three positions at one time, or separate people can fill each position, depending on the circumstances. For example, I created a revocable trust for myself, which holds my assets that I freely use – I am the Grantor, Trustee and Beneficiary during my lifetime. If I become incapacitated, my mother will manage my revocable trust as successor Trustee instead of me, but I will remain the Beneficiary of the trust and therefore my mother as Trustee may use the trust assets only for my benefit. At my death, the assets held in the revocable trust will be distributed by my mother as Trustee to the Beneficiaries who I have named in the trust as the recipients of those assets at my death.

Revocable Trusts May Be Changed During the Grantor’s Lifetime

“Can you change a revocable trust?” The Grantor retains special powers when he or she creates the revocable trust. As long as the Grantor is alive and competent, he or she may change the terms of the revocable trust. If changes are made to specific portions of the revocable trust, this is done by amending the trust. If the revocable trust is changed or updated in its entirety, this is known as a restatement of the trust. The Grantor may also terminate or revoke the trust, and take the trust assets back into the Grantor’s ownership, which is why it is called a revocable trust. The Grantor’s other powers include the ability to add assets to the revocable trust and remove assets from the revocable trust as he or she sees fit at any time.

Revocable Trusts Become Irrevocable At The Death of the Grantor

The Grantor’s special powers end at the Grantor’s death, and the revocable trust becomes irrevocable. This means no one may revoke or change the terms of the trust. The Trustee must manage and distribute the assets held in the trust as directed by the terms of the trust as they exist at the Grantor’s death.

Revocable Trusts Are a Way to Avoid Probate

Assets that are held in a revocable trust at the Grantor’s death avoid the expensive and time-consuming court process of probate. Avoiding probate by holding an asset in trust is accomplished by titling the asset in the name of the revocable trust, or designating the revocable trust as the recipient of the asset at the death of the Grantor (i.e. by beneficiary designation). The estate planning attorney who prepares a revocable trust for you should provide you with recommendations about how your trust should be funded based on the types of assets you own and your distribution instructions. However, in the event an unknown or unexpected asset is discovered after the Grantor’s death and must go through probate, it is wise to prepare a Will along with the revocable trust to capture that asset and direct it to “pour over” into the revocable trust for management and distribution.

Control of Distribution of Assets After Death

A revocable trust allows the Grantor to control the manner and timing of distribution of the trust assets to the Beneficiaries after the Grantor’s death. The trust distribution directions may be simple or complex depending on the Grantor’s financial situation, family relationships and wishes. For example, if the Grantor is concerned that a Beneficiary may get divorced or has significant debt, the Grantor may direct the Trustee to retain the Beneficiary’s share in trust for the Beneficiary’s lifetime to protect the funds. Revocable trusts also may serve as an estate tax savings tool for married couples. However, revocable trusts are not useful for the purpose of long-term care planning and do not protect your assets from having to be spent down prior to eligibility for Medicaid (MassHealth) benefits.

If you are in the early stages of estate and trust planning and interested in creating a revocable living trust, work with an experienced estate planning attorney who should explain the advantages and disadvantages of a revocable trust based on your particular situation and work with you to determine if a revocable trust is appropriate to achieve your estate planning goals.

June, 2019

What Happens to Your Personal Possessions After Death?

May 15, 2019 by Attorney Abigail V. Poole

Think about everything you own – perhaps you have personal possessions, savings bonds, real estate, life insurance, and financial accounts such as checking and savings, investment, and retirement accounts. Your physical personal possessions, such as your vehicles, furniture, clothing, jewelry, artwork, boats, collectibles, and other items are known as your “tangible personal property”.

Some tangible personal property is financially valuable – consider the countless stories you hear of a person discovering that the painting she bought at a garage sale is worth millions.

However, often the most significant value of tangible personal property is its sentimentalmeaning to you and your family. For example, your mother’s costume jewelry which you remember seeing her wear during special occasions. If you have siblings or other family who have similar emotions and memories attached to the same item, tangible personal property can quickly become a source of serious conflict between family members after death.

To avoid conflict that will damage the relationships between your surviving family members, speak with a qualified estate planning attorney to determine how you may best direct the distribution of your tangible personal property. One option is to identify and direct what happens with a specific item in your Will (and/or Trust). For example, the Will can state that your $3,000 statue is to be sold and the sale proceeds distributed equally among your children after your death. However, you must carefully consider whether disposing of your tangible personal property in your Will makes sense. If you later decide the statue should instead be distributed to your daughter, you will need to change your Will which will involve another trip to your lawyer’s office and another fee to make that change.

The better option is often to list specific items and their recipients on a tangible personal property memorandum. Under Massachusetts law, a memorandum that is incorporated by reference in the Will is legally enforceable even though it is a separate document from your Will and one that you can change on your own at any time. For instance, if you later prefer the statue to be distributed to your son instead of your daughter, you may update the memorandum yourself without the time and expense of changing your Will.

A third option is to distribute specific items of tangible personal property to the family member you wish to receive it while you are alive. Before doing this, consider whether you will miss the item, whether other family members will dispute that gift after your death (in which case you should document the transfer in writing), and whether you will be upset should the recipient decide to sell it or give it to someone else without consulting you.

Beyond the specific items you wish to distribute to certain recipients, it is important that your Will also describe what happens to all your other tangible personal property. For example, the Will may state that your other tangible personal property is to be distributed equally among your children. If your children do not want your remaining tangible personal property, your Will may direct your Personal Representative (Executor) to sell it, donate it to charity, and/or otherwise dispose of your tangible personal property.

A little inheritance planning goes a long way, especially after you are gone. At Samuel, Sayward and Baler LLC, we recognize the importance of maintaining family relationships, and look forward to tailoring your estate plan to fit your tangible personal property distribution wishes now and for the future.

May, 2019

5 Considerations If You Plan to Move to A Continuing Care Retirement Community

March 4, 2019 by Attorney Abigail V. Poole

You may be asking yourself “What is a Continuing Care Retirement Community?” A Continuing Care Retirement Community (CCRC) is a community that consists of graduated levels of residential and health care options to accommodate elders who are looking to downsize but remain independent and ensure that their health care needs are met as they “age in place” in a familiar setting. Generally, a couple or single person’s financial and health eligibility are rigorously reviewed by the CCRC and a signed agreement outlining the terms of residency, services, fees, transfers between types of residency units, and other matters (Agreement), along with a large Entrance Fee deposit (similar to a security deposit from renters), are required to join a CCRC. Here are five things to consider if you are contemplating moving to a CCRC.

How are CCRCs Regulated?

There are currently about 30 CCRCs throughout the Commonwealth of Massachusetts. Under Massachusetts’ consumer protection law (G.L.c. 93, §76), CCRCs are required to disclose specific information regarding the terms of residency and services prior to or at the time the Agreement is signed or a deposit is paid, and to provide the same to the Executive Office of Elder Affairs (EOEA), which had made several CCRCs’ Agreements and other information available here. If a CCRC knowingly and willfully fails to disclose this information, the resident may recover damages, costs and attorneys’ fees, and in certain cases, a refund of the Entrance Fee, sometimes less certain costs outlined in the Agreement. However, in Massachusetts there is no state agency that has authority to oversee and enforce the CCRCs’ adherence to the statute.

I Meet the CCRC’s Financial Requirements – Does It Meet Mine?

Typically, a large Entrance Fee deposit is required to buy in to a CCRC, and each CCRC treats the manner by which the Entrance Fee may be utilized during your lifetime and the process by which it is refunded differently. For instance, some Agreements state that the Entrance Fee may be used by the CCRC to pay your monthly expenses if your other methods of payment have been exhausted. Other Agreements state that you, or your family if you are deceased, will not receive a refund until a new resident buys in to the CCRC, unless you are willing to receive a greatly reduced refund. Yet other Agreements may link the Entrance Fee refund to your period of residency, which means the refund may be significantly less than the deposit you paid if you reside there for several years. Carefully consider the Entrance Fee refund provisions and decide if they are acceptable to you and your family when reviewing an Agreement.

Also pay attention to the financial strength of the company that supports the CCRC, especially if the Agreement makes it clear that your receipt of a refund is dependent upon the buy in of a future resident. If the company declares bankruptcy, you may lose your entire refund. The Commission on Accreditation of Rehabilitation Facilities (CARF) is a nonprofit accreditor of health and human services providers and provides a Guide to Understanding Financial Performance and Reporting in CCRCs on its website.

Another matter to consider is what happens if you no longer have adequate funds to pay your monthly expenses, especially if you are in the skilled nursing facility section of the CCRC. Carefully review the Agreement to determine if there are terms that explain the procedure by the CCRC to collaborate with you to pay your expenses, including applying for Medicaid benefits. Most CCRCs do not accept Medicaid.

What Are the Monthly (and Other) Fees I Will Pay?

The CCRC should provide you with a detailed written description of the services included with the monthly fee you will be paying them as well as a list of fees for additional services. For example, is transportation to local grocery stores, laundry services or light cleaning of your unit included in the monthly fee or are these additional fees? It’s a good idea to calculate the fees for the additional services you anticipate utilizing along with the monthly fees you will be paying. Be aware that these fees generally increase annually.

What Happens If My Health Declines?

The major appeal of CCRCs is that you can remain within a familiar community that provides more residential and health care support if and when your health declines. Many Agreements include provisions that broadly describe the process, factors and decision-makers that influence when you may be temporarily or permanently transferred from an independent living unit to an assisted living unit or a skilled nursing facility unit or to another facility outside of the community if warranted. Some Agreements permit residents or their legal representatives to weigh in and appeal the decision to permanently transfer the resident to another unit while others do not. A move to assisted living or skilled nursing can significantly increase your monthly expenses. Additionally, the decision to permanently move you to a potentially more expensive unit may be out of your hands. Carefully consider the factors and individuals involved in deciding if you require transfer to another unit, and note whether the Agreement clearly explains the fees if your healthy spouse remains in your independent living unit.

What Else Is Important to Me?

Arbitration: Another part of a CCRC Agreement to consider is the arbitration/dispute resolution provision. Some Agreements state that any disagreement you have with the CCRC may only be resolved with arbitration and/or dispute resolution and not via the court. This will limit your ability to pursue an outcome that may be more beneficial to you. Consider carefully if it is important to you to have all legal options available to you in the event the CCRC violates its Agreement with you.

Resident Rights: Beyond any rights described in the Agreement, residents may establish a residents’ association, submit comments to the CCRC regarding resident health and welfare, and request information about construction and the financial reserves of the CCRC under Massachusetts law. Think carefully about whether you will be comfortable with a limited ability to effect change within your community as a resident. Also keep in mind that you will be sharing common space with people that have different lifestyles from you; for instance, would you be bothered if your neighbor smokes cigarettes or has a noisy pet?

Activities: Review the activities, events and meal schedules of the CCRC and consider whether they appeal to you and fit your lifestyle.

For more information, an extensive consumer guide to questions and other topics for consideration regarding Massachusetts CCRCs can be found at the EOEA’s website.

If you are considering making a Massachusetts CCRC your future home and wish to better understand the terms and legal ramifications of the Agreement for you and your loved ones, contact an experienced elder law attorney to thoroughly review and discuss the Agreement with you.

February, 2019

Smart Counsel,
For Life

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

Hitting “Pause” on Creditors’ Claims Against Massachusetts Estates

Five Things To Do Soon After A Loved One Passes Away

What Are Five Things You Wish You Had Done Before The Pandemic?

Five More Important Numbers to Know When Applying for Long-Term Care Medicaid Benefits

The Do’s and Don’ts of Estate Planning According to the Movie Knives Out

Five Important Numbers to Know for Long-Term Medicaid Benefits

Planning Now For Long-Term Care After Incapacity

Five Basic Facts About Revocable Trusts

What Happens to Your Personal Possessions After Death?

5 Considerations If You Plan to Move to A Continuing Care Retirement Community

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

Let’s Work Together

Tell us how we can help

Latest Posts

'.$name.'

Smart Counsel, For Life

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

Attorney Abigail V. Poole

Wills • Trusts • Elder Law • Long-Term Care Planning • Estates

Let’s Work Together

Tell us how we can help

Footer

Latest Posts

Smart Counsel,
For Life