Given the high cost of long-term care and the increasing need for such care as people live longer, we find ourselves advising our clients more and more that long-term care insurance is an option worth exploring.  This insurance can provide a resource to help pay for the cost of care, not just in a nursing home, but at home or in an assisted living facility.  This is especially important as we see public benefits that pay for long-term care becoming more and more difficult to access as eligibility rules are tightened.  The younger you are when you purchase long-term care insurance the less expensive it is.  There are many policy options that impact the cost of the insurance.   The premiums on existing policies increase from time-to-time, and we are told by our insurance sources that increases are more common in older policies.  If you have a long-term care policy that you are considering discontinuing because of premium increases, do not act hastily.  If you are concerned about the cost of your long-term care policy, or have questions about the coverage it provides, we encourage you to get advice from a long-term care specialist.  Such a person can advise you whether there are steps you can take to reduce the cost of the policy while still leaving this important coverage in place.  If you would like the name of a long-term care specialist who can review your policy with you please contact us.

Published February, 2014

By Attorney Maria Baler

As an elder law attorney, I often refer clients to geriatric care managers to assist them with the non-legal aspects of planning for current or future care needs.  When I discuss the role of a geriatric care manager (GCM) with my clients, many of them are unfamiliar with this profession.   GCMs are an important member of the team of advisers that elders and their family members should call upon when an elder begins to need care or assistance.

Here are five ways a geriatric care manager can help:

1. You or your spouse needs assistance finding resources to help you stay in your home and maintain independence.  Many elders prefer to remain in their home as they age.  There may come a time when staying at home requires outside assistance with certain tasks such as housekeeping, cooking, bathing, dressing, grocery shopping, and transportation.  A GCM can help elders and their families evaluate the type of help needed to allow an elder to remain in her home, and then help the elder and her family locate and implement that assistance.
2. You have decided that it is time to leave your home, but you are not sure what type of senior living community is right for you.  There are many different types of senior living options.  Elders move from their home for many different reasons – for a more social and collegial environment, to obtain needed care or assistance, or to be closer to family members.  GCMs are familiar with the different types of housing options available and can help you weigh the pros and cons and decide what’s right for you.
3. Your loved one is being discharged from a hospital or rehabilitation center and needs to move to a nursing home for a short- or long-term stay.  GCMs spend a lot of their time talking with nursing home staff and visiting facilities to check on their clients.  They are familiar with the facilities in their communities and the strengths and weaknesses of each.   One of the most valuable things a GCM can do is evaluate an elder’s needs and make recommendations for nursing homes tailored to those needs.  This is much more useful to a family than ratings on a website or the recommendation of a friend or neighbor, whose loved one may have had very different needs.
4. You are a child who lives far away from your parents.  GCMs fulfill a much needed role in assisting elders whose family members do not live nearby.  A GCM can check in on the elder periodically and report back to the family about the elder’s status.  A GCM can accompany the elder to routine doctor’s appointments or can be on call to accompany the elder to a hospital or emergency room if an unexpected crisis occurs.  Following such appointments, a GCM can help implement next steps (i.e. medication supervision, further testing, etc.), and communicate with family members and agencies to keep everyone on the same page.  A GCM can monitor caregivers that assist the elder at home or in a facility and make changes as needed.  In short, a GCM can be the eyes and ears of the family, providing monitoring, follow-up, and advocacy for an elder.
5. You or your family members need support and guidance.    When a family member needs care or assistance it is often a confusing and difficult time for the family.  The person who needs assistance may not agree that assistance is needed.  Family members may have limited time, resources, or expertise, or live too far away to provide regular assistance. The process of locating and maintaining caregivers or other assistance can be confusing and overwhelming to family members.  A GCM can provide professional guidance in these areas, recommending appropriate services or housing options and helping the family implement those recommendations.  GCMs can also provide emotional support to families and assist with complicated family dynamics and emotions around changing circumstances.

Geriatric care managers are a wonderful resource for professionals, their elderly clients, and family members of elders.  GCMs can smooth the way through difficult transitions, find solutions and resources, and become a trusted advisor, both in crisis and everyday situations.  To find a GCM near you, consult the Directory on the website of the New England Chapter of the National Association of Professional Geriatric Care Managers at www.gcmnewengland.org.

Attorney Maria Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. She is also a director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA). For more information, visit www.ssbllc.com or call (781) 461-1020.  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.

As an elder law attorney, I spend a lot of time talking with clients about paying for long-term care and how to “protect” their assets.  Many of these conversations are precipitated by ads clients hear on the radio or see in print, urging them to act quickly to protect their assets from the high cost of nursing home care, and making it seem easy as pie to do so while still enjoying full control.  In long-term care planning, as in life, it is not possible to have your cake and eat it too as these ads would have you believe.

In order to keep your options open to live where you want to live as you get older you need resources.   Much of the pre-planning that is done to “protect” assets involves removing assets from your control, with the result that the asset are not available to pay for care you may need down the road.  Putting resources beyond your reach may mean that you will need to apply for public benefits to pay for care.  Although the availability of public benefits to pay for care in settings other than a nursing home is improving, public benefits are still predominately available for nursing home care.  I have yet to meet a client who would rather be in a nursing home rather than at home or in another less restrictive setting such as an assisted living facility or a continuing care community.

The planning to protect assets that you hear about on the radio or see in print ads is often about protecting your assets for future generations rather than protecting those assets for you or your spouse.  If you have been thinking about long-term care and asset protection issues, seek the advice of an experienced elder law attorney.  If your attorney does not discuss the risks or downsides of a particular asset protection strategy, ask questions about the disadvantages of such planning and make sure you understand the consequences before proceeding.  An experienced elder law attorney can counsel you on the benefits and risks of various asset protection strategies and help you decide what is best for you and your family.

Click here for an excellent article written by my partner Suzanne Sayward in November 2013 about why you might not want to transfer your assets to an irrevocable trust.

Published December, 2013

Do you live in Massachusetts and own real estate in another state?  Perhaps it’s a ski condo in New Hampshire, a winter retreat in Florida, or a deeded timeshare in North Carolina?  If so, your out-of-state property requires special consideration as part of your estate plan.  Here are five things to consider when planning for out-of-state property:

1. Get the Advice of Local Counsel.  Many owners convey out-of-state real estate into a trust as part of the estate planning process.  Others may choose to convey the property to children or other relatives.  If a conveyance of out-of-state property is contemplated, be sure to the get advice of a real estate or estate planning attorney who practices in the state in which the property is located.  Real estate conveyance laws and practices vary greatly from state to state (and sometimes county to county).  A deed drafted using the format and language used in Massachusetts may not effectively convey property in another state, or may have unintended consequences.  An erroneous deed will create title issues that can have ramifications long after you have passed away, which can be costly and time consuming to correct. Finally, some states impose transfer taxes on certain conveyances that require additional filings. These are just examples why it is important to get the advice of a local attorney when doing any type of conveyance of your out-of-state property.
2. Two probate proceedings are NOT twice the fun. If you own out-of-state property in your individual name at your death, a probate proceeding will be required in the state where the property is located in order to transfer title to your heirs.  With probate comes the cost and delays associated with it. Above and beyond the additional cost is the difficulty of managing a legal proceeding in another state.  This can be avoided with careful planning.  Speak to your estate planning attorney about probate avoidance options available to meet your goals for the particular property.
3. Don’t Forget to Consider the Estate Tax.  Just as each state has its own laws governing real estate, different states have different state estate tax laws.  Some states (like Florida) do not impose an estate tax on residents who own real estate in their state.  Other states, like Massachusetts, require non-residents who own real estate in Massachusetts to file an estate tax return and pay estate tax to the Commonwealth based on the value of the real estate located in Massachusetts.  When planning, it is important to understand the estate tax implications of owning property in another state and to take that into account in the planning process.
4. Be Careful About Changing your Domicile – Many people who own property in another state consider changing their domicile to that state.  There can be estate and income tax benefits to changing your domicile, however it is not as simple as packing the moving truck and filling out a change of address card.  Your residence for tax purposes is determined both by where you are physically located and where you intend to reside.  Evidence includes such factors as voter and automobile registration, membership in clubs and religious groups, the address on your bank and credit card statements, in addition to where you spend your time.  A state like Massachusetts, which has both an estate and income tax, can be aggressive in its pursuit of taxpayers who claim to reside in another state but maintain ties to Massachusetts (such as ownership of real estate or a business interest).  If you are considering changing your residence, seek expert advice about the steps you need to take, and then follow that advice.
5. Be Realistic.  When estate planning involves out-of-state property, be realistic.  Will your children continue to use the property after your lifetime or will it be a costly burden for them?  Maintaining property in another state as well as finding the time to visit can be difficult.  If your out-of-state real estate is a special property you hope your family will use for generations, take the time to plan for it in a way that the property can be passed to your heirs in a way that minimizes taxes and provides a framework to manage the property going forward.  If it is a property you enjoy but your heirs will not or cannot, consider whether it may be appropriate to direct that the property be sold at your death, or sell it prior to death to minimize the additional cost and effort involved in dealing with such a property after your lifetime.

Along with the enjoyment a property in another state can provide comes the need to plan for that property.  Take the time to consider these unique planning issues as they relate to your particular situation and address them in a thoughtful way with the advice and assistance of an experienced estate planning attorney.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC.  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.

October 2013

By Attorney Maria C. Baler

Do you live in Massachusetts and own real estate in another state?  Perhaps it’s a ski condo in New Hampshire, a winter retreat in Florida, or a deeded timeshare in North Carolina?  If so, your out-of-state property requires special consideration as part of your estate plan.  Here are five things to consider when planning for out-of-state property:

1. Get the Advice of Local Counsel.  Many owners convey out-of-state real estate into a trust as part of the estate planning process.  Others may choose to convey the property to children or other relatives.  If a conveyance of out-of-state property is contemplated, be sure to the get advice of a real estate or estate planning attorney who practices in the state in which the property is located.  Real estate conveyance laws and practices vary greatly from state to state (and sometimes county to county).  A deed drafted using the format and language used in Massachusetts may not effectively convey property in another state, or may have unintended consequences.  An erroneous deed will create title issues that can have ramifications long after you have passed away, which can be costly and time consuming to correct. Finally, some states impose transfer taxes on certain conveyances that require additional filings. These are just examples why it is important to get the advice of a local attorney when doing any type of conveyance of your out-of-state property.
2. Two probate proceedings are NOT twice the fun. If you own out-of-state property in your individual name at your death, a probate proceeding will be required in the state where the property is located in order to transfer title to your heirs.  With probate comes the cost and delays associated with it. Above and beyond the additional cost is the difficulty of managing a legal proceeding in another state.  This can be avoided with careful planning.  Speak to your estate planning attorney about probate avoidance options available to meet your goals for the particular property.
3. Don’t Forget to Consider the Estate Tax.  Just as each state has its own laws governing real estate, different states have different state estate tax laws.  Some states (like Florida) do not impose an estate tax on residents who own real estate in their state.  Other states, like Massachusetts, require non-residents who own real estate in Massachusetts to file an estate tax return and pay estate tax to the Commonwealth based on the value of the real estate located in Massachusetts.  When planning, it is important to understand the estate tax implications of owning property in another state and to take that into account in the planning process.
4. Be Careful About Changing your Domicile – Many people who own property in another state consider changing their domicile to that state.  There can be estate and income tax benefits to changing your domicile, however it is not as simple as packing the moving truck and filling out a change of address card.  Your residence for tax purposes is determined both by where you are physically located and where you intend to reside.  Evidence includes such factors as voter and automobile registration, membership in clubs and religious groups, the address on your bank and credit card statements, in addition to where you spend your time.  A state like Massachusetts, which has both an estate and income tax, can be aggressive in its pursuit of taxpayers who claim to reside in another state but maintain ties to Massachusetts (such as ownership of real estate or a business interest).  If you are considering changing your residence, seek expert advice about the steps you need to take, and then follow that advice.
5. Be Realistic.  When estate planning involves out-of-state property, be realistic.  Will your children continue to use the property after your lifetime or will it be a costly burden for them?  Maintaining property in another state as well as finding the time to visit can be difficult.  If your out-of-state real estate is a special property you hope your family will use for generations, take the time to plan for it in a way that the property can be passed to your heirs in a way that minimizes taxes and provides a framework to manage the property going forward.  If it is a property you enjoy but your heirs will not or cannot, consider whether it may be appropriate to direct that the property be sold at your death, or sell it prior to death to minimize the additional cost and effort involved in dealing with such a property after your lifetime.

Along with the enjoyment a property in another state can provide comes the need to plan for that property.  Take the time to consider these unique planning issues as they relate to your particular situation and address them in a thoughtful way with the advice and assistance of an experienced estate planning attorney.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC.  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. 

 

By Attorney Maria Baler (August 2013)

Beneficiary designations are an often overlooked aspect of estate planning. While most people understand that they can designate a beneficiary for their life insurance and retirement accounts, they do not necessarily understand that the beneficiary designation forms control those assets absolutely. This is true regardless of how long it has been since you designated the beneficiary, what your current intentions may be, or what your Will or Trust may say. Here are five reasons to review beneficiary designations from time to time:

1. You Change Jobs. I often receive calls from my clients when they change jobs because the HR department has given them lots of forms to fill out, including beneficiary designation forms for their group life insurance policy and their 401k. These forms are often filled out in haste during a hectic first week when the new employee has lots of other things on his mind. New forms are also required if you add additional life insurance or if your company changes 401k providers. In these situations, it’s easy to simply list your spouse as the primary beneficiary of your life insurance and retirement accounts, and your children as the equal contingent beneficiary, and move on to the next form. However, take the time to think about those designations to be sure that they are consistent with the rest of your estate plan. If you have set up a trust for the benefit of your young children or for estate tax planning purposes, should the trust be named as the beneficiary? You may not know the answer to that question, but your estate planning attorney will. Take the time to make a call or send an email to be sure those designations are made correctly.

2. Your Marital Status Changes. As a result of the recent enactment of the Uniform Probate Code in Massachusetts, beneficiary designations in favor of a former spouse are deemed void after a divorce. However, there is some question about whether the terms of an individual retirement plan or federal ERISA law could override this provision of state law. To be safe, if you are recently divorced you should update your beneficiary designations to reflect your current intentions. Conversely, if you are newly married, it is important to review and update your beneficiary designations as well.

3. Your Estate Plan Changes. A good estate plan will change as an individual’s circumstances change. A trust that was the beneficiary of your retirement account when your children were young may no longer be appropriate when they are having children of their own. A previously responsible child may develop a drug or alcohol addiction, or have a tendency to spend money inappropriately. It may become appropriate to leave your assets, including life insurance or retirement benefits, in unequal shares to your children for various reasons. Grandparents may wish to name grandchildren as beneficiaries if their children have sufficient wealth. For all of these reasons and many others, the manner in which you designate family members as beneficiaries of your life insurance or retirement accounts may need to change as time goes on. Don’t forget to revisit beneficiary designations when making changes to your estate plan so that they are consistent with each other.

4. It’s Time to Consider the Tax Implications. How retirement benefits are distributed at the death of the retirement plan participant can have significant income tax implications. This may not warrant a lot of thought if you have $20,000 in your retirement account. However, as time goes on, many people build up considerable wealth in their retirement plans. A beneficiary who receives a large lump-sum payment from a retirement plan will also receive a big income tax bill and lose a significant portion of the account to income taxes. It is possible to reduce these adverse income tax implications with thoughtful planning (see #5 below). Life insurance and retirement accounts are also subject to estate tax at the owner’s death. Planning can also reduce the impact of this tax, for example, through the use of irrevocable trusts or, for those with charitable intentions, by leaving these assets directly to charity.

5. Consider How — not just Who. All of that wealth in your life insurance policies and retirement accounts could have a significant impact on the beneficiary who receives it (or who has the option to receive it) in one lump sum. In addition to the income tax impact (see #4 above), receiving a large amount of money all at once may have an adverse impact on a beneficiary’s work ethic and lifestyle. If the timing is wrong, inherited assets can be lost to creditors, divorce, bankruptcy or other troubles. If a beneficiary is disabled and receiving public benefits, receipt of payments from life insurance or retirement benefits can result in disqualification from these very important benefits. In addition to reviewing who is named as beneficiary of your life insurance and retirement accounts, consider how they will receive the funds and whether controlling the manner in which that happens is in the best interest of your beneficiary.

Life insurance and retirement accounts often hold significant wealth but receive less attention than they deserve when it comes to planning. Review your beneficiary designations periodically to ensure they are consistent with your planning goals while being mindful of tax and other implications.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. 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.

By Attorney Maria Baler (June 2013)

Estate planning involves planning for your assets – how they will be managed for your benefit if you become incapacitated, and how they will be distributed following your death. Your real estate may be your most valuable asset – whether it is your residence, your vacation home, , or a two-family income property. Whatever type of real estate you own, it is important to take care when planning for it. Here are five things to keep in mind when planning for your real estate.

1. Take the time to identify what you own. It is easy to remember that you own your home or your vacation property. It is sometimes harder to remember that you also own the lot next door that was deeded to you separately or the strip of land at the back of your yard that your neighbor deeded to you in exchange for a separate strip of land elsewhere. These separate lots or parcels are often overlooked, especially if you took ownership of them long ago and at a different time from the purchase of the main property. One way to confirm what you own is to review the real estate tax bills that you pay each year and make sure you are aware of and have a copy of the current deed to each parcel.

2. How your real estate is owned is important. The next step in planning for your real estate is to review the deed to the property carefully. Do you own the property in your name alone or with someone else? If the property is owned with someone else, do you own it jointly (or if with your spouse as “tenants by the entirety”), or as tenants in common? How title is held impacts how your interest in the property will pass at your death – automatically to the surviving joint owner of the property, or independently of that person under the terms of your Will. Many people think they know how they own their real estate, but are surprised when they review the deed and find ownership is not as expected. Take the time to review the deeds to your real estate with your attorney to ensure the manner in which you hold title is consistent with your wishes and the rest of your estate plan, and make changes if necessary.

3. Holding real estate in trust has its benefits. During the estate planning process, your attorney may discuss with you whether or not you should own your real estate in a trust or other entity, such as a limited liability company (LLC). These entities serve different planning purposes, and are often used to avoid probate with real estate, provide protection from liability, and make sales or transfers of interests in property between family members easier.

4. Transfers into trust should be done with care. Before transferring your real estate into trust, take care to avoid some of the complications that result when real estate transfers are done without attention to detail. If you have a mortgage on the property, review the mortgage itself and applicable law to determine if the transfer will trigger acceleration of the underlying loan. Contact your homeowner’s insurance agent to determine if any changes need to be made to your property or liability insurance coverage to insure all owners are appropriately insured under these policies. Check on residential, elderly or veteran’s property tax exemptions to ensure they will not be lost or impacted by a transfer of property to trust. If you have owner’s title insurance on your property, read your policy and/or check with the title company to be sure an endorsement to the policy is not needed to continue coverage after the transfer. Finally, if you have filed a Declaration of Homestead on your property to protect its equity from claims of creditors, speak to your attorney about whether you must file a new Homestead to continue that protection.

5. Out-of- state real estate deserves special attention. Holding out-of-state real estate in trust is a strategy often used to avoid a probate proceeding in another state, saving your heirs the added expense of an additional probate proceeding and the delay and expense of locating an out of state attorney to handle that probate proceeding. Keep in mind that you may need to engage an attorney in the state in which the real estate is located to advise you on the pros and cons of holding real estate in trust in that state, to prepare the deed, to advise about property tax matters, transfer taxes the state may impose, and additional forms that may need to accompany the deed filing, etc. Real estate laws and practice can vary greatly from state to state, and obtaining the advice of an experienced real estate attorney where the property is located is essential

Take the time to plan properly for your real estate now to avoid unpleasant surprises in the future. Failing to plan or planning improperly can create problems for your heirs when they try to sell the property after your death, which may take significant time and money to correct. With good advice and thoughtful planning at the outset, ownership of your real estate will transition smoothly.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. 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.

By Attorney Maria Baler (April 2013)

If you are a parent, one of the most important things you can do for your children is plan for the fact that you will not be around forever. This is a very hard thing for most parents to do. On an emotional level, it is difficult to even consider the possibility that you may not be there for your children. On a practical level, parents are busy people – our lives are consumed with working to provide for our children’s basic needs, driving them where they need to go, rooting for them on soccer fields, cheering for them in gyms and auditoriums, packing lunches, cooking healthy dinners and imploring our children to eat them. Of all of the things we do for our children, estate planning may be what matters most if the worst happens. Here are five simple planning steps you should take for your children.

1. Write a Will. A Will is an important document to have for many reasons. For parents, a Will is your opportunity to choose the person who will care for your children. The guardian of a minor child decides where the child will live, where the child will attend school, what type of health care the child will receive, and other day-to-day decisions regarding a child’s care and upbringing. If you do not have a Will naming a guardian for your child, family members or others may “petition” the court to be appointed the child’s guardian, and the court will have the difficult job of choosing among those who ask to be appointed. Your Will can also name the same or a different person to serve as the child’s “conservator” who will have the job of receiving and managing the child’s assets (including any inheritance they receive from you) until the child is 18 years of age.

2. Create a Trust. Trusts are not just for those with millions of dollars. Think about the assets your children would receive if you passed away – consider your home, your life insurance, your retirement accounts, your savings and investments. Then think about how you feel about your children receiving those assets at age 18. If this thought makes you uncomfortable, a Trust should be a part of your estate plan. A Trust puts you in control of who will manage your assets for your children and at what age or ages your children will be entitled to receive those assets. While funds are held in trust for your children’s benefit, the Trustee can use them for a child’s education, living expenses, health care expenses, or for other purposes you specify.

3. Name a Temporary Agent. Massachusetts law allows parents to appoint a person to temporarily make decisions for a minor child on matters such as the child’s care or property, including health care decisions that may be required, in the event of the parents’ death or unavailability. This appointment must be made in writing, signed with certain formalities, and is effective for a period of up to 60 days. Such an appointment is useful in the event you are unavailable due to travel or illness or in the event of your death and before a legal guardian can be appointed by the Court.

4. Obtain or Review Life and Disability Insurance. All parents hope they will be there to provide for their children, but the reality is this is not always the case, which is why disability and life insurance are important parts of a complete plan to protect young children. Disability insurance can provide your family with a stream of income to replace, at least in part, the income you could not provide if you were disabled. Life insurance can be a much needed resource to provide for a family’s living expenses, or for larger expenses down the road. If you have this coverage in place, take the time to review it to be sure the coverage is adequate for your family’s current needs. These resources may allow your children to have the life you planned for them, even if something unexpected happens to you.

5. Plan for a Child’s Disability. Planning is especially important for parents who have a child with a disability. Receiving inherited assets may cause a child to lose eligibility for public benefits, including health insurance benefits that may provide otherwise costly services or treatments. Proper estate planning will safeguard a disabled child’s inheritance for the child’s benefit in a way that will not disqualify the child from receiving needed benefits, either at that time or in the future. If you have a child with a disability, it is also important to speak to family members whose estate plans may benefit the child, to ensure that those plans also include proper provisions.

Set a goal of completing one or more of these steps within the next six months, or by the end of the year, or before your next big trip. Any planning you undertake will benefit your children if the unexpected happens. And once you have a plan in place, don’t forget to review it periodically and make changes as needed. Plans created when your children are young will not necessarily be appropriate when they are teenagers or in their 20s, when they still need the benefits and protection a good estate plan can provide.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. 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.

By Attorney Maria Baler (February 2013)

Although it may be difficult or uncomfortable to discuss the type of health care you wish to receive should you be impacted by an accident, a terminal illness, or circumstances that may warrant skilled nursing care, nevertheless it’s important to make your wishes known while still healthy and independent. When a person is unable to give clear direction about his or her care because of illness or incapacity, the circumstances for the patient and family are even more difficult. Here are five ways to increase the likelihood that your wishes will be met.

1. Create a Health Care Proxy. If you are unable to make health care decisions for yourself, who will do that for you? A Health Care Proxy is the legal document we use in Massachusetts to appoint a person (your Health Care Agent) to make health care decisions for you if your doctor determines that you are unable to do so. This is sometimes called an Advance Directive. If you do not have a Health Care Proxy and your doctor determines that you are unable to make decisions about your treatment, a legal guardian will need to be appointed by the Court to make those decisions for you. A guardianship proceeding is time consuming and expensive, and gives you little or no control over who the Court names to make health care decisions for you. The best way to ensure that your wishes are carried out is to create a Health Care Proxy naming a person you trust to make medical decisions on your behalf. When you create your Health Care Proxy, make sure you give a copy to your doctor and your Health Care Agent. A Health Care Proxy can be prepared for you by an attorney, or forms are available on the website of the Massachusetts Medical Society (www.massmed.org).

2. Sign a HIPAA Authorization. A HIPAA Authorization lists the people who are authorized to speak with your caregivers about your health and your health care. The people listed are given permission to receive information but they are not decision makers. Any decision-making about your health care is done only by the Health Care Agent you have named in your Health Care Proxy. Signing a HIPAA Authorization will ensure that friends or family members you want to stay fully informed about your medical condition will have the legal ability to do that, so they can assist you or provide input to your Health Care Agent if necessary.

3. Write a Living Will or other Instructions. A Living Will is a document that specifically addresses life-sustaining treatment, and typically states a person’s wish to not be kept alive by artificial means if they have an incurable condition and are not expected to recover. In Massachusetts, Living Wills serve as an expression of your wishes that your Health Care Agent can refer to when making health care decisions for you. If you do not want your life to be prolonged by artificial means, it is important that you let your Health Care Agent know how you feel. A Living Will is a simple and effective way to do this.

4. Have a Discussion with your Doctor. In order to give appropriate direction about your wishes you must first understand the situations you may be faced with, the types of decisions that must be made by your health care decision-makers, and your treatment options. A conversation with your doctor is a good way to start thinking about these issues and making decisions that are right for you given your age and health. On the subject of end-of-life planning, Massachusetts has begun a public education campaign about the need for advance end-of-life care planning, including MOLST (Medical Orders for Life-Sustaining Treatment). Medical staff are being trained on discussing these issues with patients and assisting them to complete a MOLST form. This form translates patient preferences about certain medical treatments into formal medical orders that can be honored by health professionals across various care settings (i.e. home, hospital, nursing home).

5. Speak to your Health Care Agents, Family, Clergy, and Others. Although it is important that your doctor knows how you feel about your health care, it is equally important that you communicate those wishes to your Health Care Agent and family members. Having these discussions before an urgent situation occurs is always preferable than having to do so in a crisis. Your family members are most likely to be the ones who will be by your side in an emergency or urgent health care situation. One of them may be your Health Care Agent, who should be able to give clear direction — with the assistance of medical personnel — about the care you should or should not receive. If you have spoken to your family members ahead of time, they will share a similar understanding of your wishes, which may make your Health Care Agent’s job easier and reduce the possibility of disagreement among them.

Take the time to think about the type of health care you would want and where you would want to receive it, speak to your family and your doctor, and put the appropriate legal documents in place. If you take these steps now, while you are able to do so, you will greatly increase the chances that you will receive the type of care you want where you want it, which is what all of us hope for and deserve. For more information specific to end-of-life planning, see www.theconversationproject.org and www.molst-ma.org.

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. 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.

One of the first questions I ask clients who want to discuss planning for long-term care is whether they have long-term care insurance. Those who do not have long-term care insurance express concern about the cost and the fact they may never use the benefits that long-term care insurance provides.

Men and women have an average life expectancy of 76.5 years. However, a person who lives to age 65 has an average remaining life expectancy of 17.7 years (to age 82.7). The longer you live the longer your life expectancy. Most people who live into their 80s and 90s will require some type of care before they die. Your health and family history may also impact your likelihood of needing care in the future. Most people you ask would prefer to be cared for in their home, rather than in a nursing home or other long-term care facility. Long-term care insurance is one resource that can be used to pay for the care you may need as you age, whether it’s at home, in an assisted living facility, or in a nursing home. Here are five facts about long-term care insurance.

1. Not all Long-Term Care Insurance Policies are Alike. Not all long-term care insurance policies are created equal. Long-term care policies generally provide a dollar amount that the policy will pay each day toward your care if you meet a certain threshold level of need for care or assistance. Policies vary greatly in the daily benefit amount provided, the length of time that benefit will be paid (i.e. for one year, three years, etc.), the types of care the policy benefit will pay for, and whether the policy has inflation protection. Each of these different aspects of the policy impacts the policy’s cost. A long-term care insurance agent can help you understand which features of the policy are most important for your particular situation, which are worth paying extra for, and which are not. For example, someone with a large pension may require a smaller daily benefit amount. It is also important to understand the financial strength of the company issuing the policy in order to help determine whether or not that company will be around to pay the benefits when you need them.

2. Read the Fine Print to Ensure You are Covered for the Care You Want. Although most people would prefer to receive any care they may need in their home, not all long-term care insurance covers home care. Make sure you understand the type of care your policy covers and the level of care you must require before the policy will begin paying benefits. The policy may also specify who must deliver the care you need — some policies will pay a benefit even if a family member is delivering that care, some will not.

3. Don’t Wait Too Long To Decide if Long-Term Care Insurance is Right for You. In addition to the benefits provided by the policy, your age at the time the policy is purchased is the other important factor in determining the cost of a long-term care policy. If you decide that long-term care insurance makes sense for your situation, don’t delay. The best time to purchase such a policy is when you are in your 50s or 60s.

4. Make Sure Your Policy Qualifies for the Estate Recovery Exemption in Massachusetts. In Massachusetts, an individual can be eligible for Medicaid benefits to pay for long-term care even if he owns a home. However, the Commonwealth will place a lien against the home so that it can recover the cost of those benefits if the home is sold or upon the death of the Medicaid recipient. Massachusetts does, however, allow the home of an individual who has a long-term care insurance policy that meets the criteria established by the state to be exempt from post-death recovery of benefits paid. The logic behind this provision is to encourage people to purchase long-term care insurance, giving them another resource to pay for their care, thereby reducing the amount the Commonwealth must pay towards their long-term care costs.

5. Some Policies Provide an Answer to What Happens If You Never Need Long-Term Care. “Hybrid” long-term care policies provide long-term care benefits along with a death benefit (like a life insurance policy) if you never use, or use only a fraction of, the long-term care benefits the policy provides. These types of policies are more expensive than standard long-term care policies. However, they may be a solution for those who hesitate to purchase a standard long-term care policy because they are not certain they will ever need the benefits the policy provides. An experienced long-term care insurance agent can educate you about the various types of long-term care insurance policies and guide you to the policy that is most appropriate for you.

There is a lot of chatter out there about how to protect assets from having to be spent down on long-term care expenses and much of that revolves around positioning assets in order to become eligible to receive Medicaid benefits. Although Medicaid provides more benefits for community-based care than it has in the past, it is primarily a benefit used by those in nursing homes. As with all public benefits programs, Medicaid is likely to suffer cuts to the program and reductions in the services it is able to provide in the future. If you want to ensure you have sufficient resources to pay for your own care in a location of your choice, such as in your home or in an assisted living facility, long-term care insurance is an option worth exploring.

There are many places to educate yourself about long-term care insurance. The Commonwealth’s Office of Consumer Affairs and Business Regulation publishes an excellent guide to long-term care insurance for consumers. Find it online at http://www.mass.gov/ocabr/consumer/insurance/health-insurance/consumer-guides/ (click on Long Term Care Guide).

Attorney Maria C. Baler is an estate planning and elder law attorney and a partner with the Dedham law firm of Samuel, Sayward & Baler LLC. 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.

(November 2012)