Don’t Miss Our January 2022 Newsletter
(in a brand new format!)
Please find our newsletter below.
Five Things to Discuss with Your Aging Parents This Holiday Season
Though it may be hard to believe, it is once again December, the time of year when the days grow shorter, the weather grows colder, and a variety of religious and secular holidays and traditions call on us to get together to celebrate with family and friends, many of whom we may only see once or twice a year. For those who live far from family, this time of year frequently involves traveling to see relatives in person, possibly for the first time in a long time in light of the fact that the COVID-19 pandemic meant that many of us had to scale back or even cancel our cherished celebrations last year.
Although it’s not always the easiest topic to discuss, this time of year can be a great opportunity to talk to your parents (and/or other close relatives) about ensuring that they have plans in place for what happens both after they die and in the event they become incapacitated during life. In particular, you should consider discussing:
1. Your Parents’ Comprehensive Estate Plan. Having a comprehensive, up-to-date estate plan in place is important both because it puts your parents in control of what happens after their deaths and during periods of incapacity and because, if properly structured, it avoids costly, intrusive, and time-consuming court proceedings.
A comprehensive estate plan consists of, at a minimum, Wills to dispose of your parents’ probate assets after death, durable powers of attorney to permit someone chosen by them to manage their financial affairs if they become incapacitated, health care proxies to permit someone chosen by them to make medical decisions on their behalf if they become incapacitated, and HIPAA release authorizations to permit your parents’ health care providers to disclose and discuss their protected medical information with those listed in the document. A comprehensive estate plan often also includes one or more revocable living trusts, which can allow the creator(s) of the trust(s) (the “Grantor(s)”) to avoid the probate process after death and streamline the management of assets during life. Properly structured revocable trusts can also, in the case of a married couple, minimize or even eliminate the estate taxes due upon the death of the surviving spouse.
If your parents do not have an up-to-date, comprehensive estate plan in place, you should encourage them to speak with an attorney who practices in the area of estate planning to set one up.
2. Your Parents’ Plans Regarding Long-Term Care. The seemingly ever-increasing cost of long-term care, not to mention the different options available, is often a source of significant stress and worry for people as they age. Generally speaking, there are three ways to pay for long-term care: (a) paying privately; (b) purchasing long-term care insurance to cover a portion of the costs; or (c) qualifying for needs-based government assistance through Medicaid, which has strict financial requirements. Each option has its own pros and cons, and not every option is available in every situation. Medicaid, for instance, will typically cover 24/7 long-term care in a nursing home and will often cover some amount of home care (though usually not 24/7 home care), but will only very rarely cover care at an assisted living facility.
If your parents are concerned about long-term care or would like to know more about their options, you should encourage them to speak with an experienced elder law attorney about these issues. It is important to understand the different long-term care options as well as what advance planning strategies are available and appropriate.
3. Your Parents’ Wishes Regarding End-of-Life Medical Care. Modern medicine is rather miraculous in its ability to keep people alive longer and longer, but these advances mean that it is more important than ever to think ahead about what types of measures you would want to be taken to prolong your life if you are, for instance, terminally ill. In Massachusetts, there are two primary documents that can be used to express these wishes. The first is a living will, which is not legally binding and is usually a general statement of intent regarding end-of-life care (e.g., “Do everything you can to keep me alive as long as possible,” or “Do not use “extraordinary” methods such as a feeding tube to extend my life.”). Although this document can often be prepared as part of a comprehensive estate plan, since it is not legally binding, it can also be prepared by the individual without the involvement of a legal professional.
The second document is a Medical Order for Life-Sustaining Treatment (commonly abbreviated as a “MOLST”). Unlike the other documents discussed in this article, this document is prepared in consultation with a physician and, once signed, becomes a medical order regarding certain types of end-of-life care which is placed in the patient’s medical record. Although MOLSTs have traditionally only been used with patients who are terminally ill and/or have a severe chronic illness, some physicians have started discussing them with a wider array of patients.
4. Your Parents’ Wishes Regarding Funeral Services and the Disposal of Their Remains. A crucial task that generally falls to children after the death of a parent but is rarely talked about in an estate planning context is the disposal of the parent’s remains and the planning of their funeral. These decisions generally need to be made very quickly after death, at a time when family members may still be in shock and/or not thinking clearly. This makes it especially important to discuss your parents’ wishes ahead of time rather than trying to guess at what they would want after they’re gone, when you could be vulnerable to exploitation. While traditionally funerals have been relatively somber affairs and the options for the disposal of bodily remains were limited to a traditional burial or cremation, newer options, such as green/environmentally friendly burials and memorial services that are more celebratory as opposed to mournful, are becoming more common and widely available.
If your parents have particularly strong wishes about the disposal of their remains and/or their funeral services, they may want to consider adding a Directive as to Remains to their estate plan. This highly customizable document can express wishes regarding the actual disposal of bodily remains (e.g., burial or cremation) as well as wishes about funeral and other memorial services, including whether certain religious services or rites should be performed and whether any sort of service should be held at all.
5. Your Comprehensive Estate Plan and Wishes. While most of this article has focused on what you should discuss with your parents about their wishes and plans, you should also take the opportunity to discuss what your wishes and plans are for yourself. This is especially true if your parents are named in your own estate plan documents, either as beneficiaries or to serve in one or more key roles. As important as it is for you to know your parents’ wishes should something happen to them, it is equally important for your parents to know your wishes should something happen to you. Additionally, taking the opportunity to lead by example may give reluctant parents the push they need to get their own plans in order.
These topics do not qualify as light holiday dinner conversation, and are often difficult, awkward, and/or painful to discuss. Unfortunately, while not discussing it may save you from some difficult, painful moments now, it may be even more painful if these discussions are put off when there’s been an emergency and decisions need to be made quickly either with no plan in place or with a plan that no one knew about beforehand. That said, this is not a discussion that should be rushed into or done haphazardly. Fortunately, groups such as The Conversation Project and the broad “death positivity” movement have resources available online to help families approach these subjects thoughtfully and productively.
December 2021
© 2021 Samuel, Sayward & Baler LLC
Better Late than Never: What Happens When You Wait More than 3 Years to Administer an Estate
Dealing with the death of a loved one is often a stressful, emotionally draining experience. In the midst of grieving the loss, going through the steps necessary to clear title on Aunt Jenny’s house or ensure that dad’s checking account is taken out of his name is often the last thing a person wants to deal with. Frequently, once the grief is less acute, loved ones will circle back and take the necessary estate settlement steps to ensure that everything is out of the decedent’s individual name, but occasionally this does not happen and assets are instead allowed to linger on in the decedent’s name.
In such situations, there is usually a “triggering event” that causes someone to realize that no action was taken. Maybe everyone was content to let cousin Becky live in grandpa’s house (which he held in his individual name) for a while after his death, but now that she’s moved out everyone agrees it’s time to sell, or maybe Mark decided to check the state’s unclaimed property site (www.FindMassMoney.com, FYI) and on a lark entered mom’s information only to discover mom had a bank account in her individual name that everyone forgot about. Whatever the reason, it’s now been several years since the person died and the question on the table is “What can be done to get access to this asset?”
If the loved one died prior to March 31, 2012, then the answer is likely simple: file for a standard probate proceeding just as would be done if the death occurred yesterday. This is because under the law in effect through March 30, 2012, probate proceedings could be initiated in Massachusetts up to 50 years after a person died. However, on March 31, 2012, the Massachusetts Uniform Probate Code went into effect, substantially overhauling the laws governing probate proceedings in Massachusetts. Among the changes was a drastic shortening of the time limit to initiate standard probate proceedings for those who die on or after that date – from 50 years after death to just three years after death.
Fortunately, this 3-year deadline does not mean that grandpa’s house is destined to stay in his name forevermore, unable to be sold or conveyed ever again. Nor does this deadline mean that the state gets a windfall in the form of mom’s unclaimed checking account. Although the deadline to file standard probate proceedings is three years after death, the law permits a special type of probate proceeding, known as a “late and limited” proceeding, to be filed more than three years after death.
As can be gleaned from its name, a late and limited probate proceeding is, well, limited in its scope. Unlike a standard probate proceeding, where the Personal Representative (formerly known as the Executor) has broad authority to deal with the decedent’s probate assets, including taking possession of them and, in some circumstances, selling them, a Personal Representative in a late and limited proceeding only has the authority necessary to confirm that the assets held in the probate estate are now owned by the decedent’s heirs (if the decedent died without a will) or devisees (if the decedent died with a will).
As an example, a standard Personal Representative generally has the authority to unilaterally sell real estate without the consent of the estate’s beneficiaries. A late and limited Personal Representative, on the other hand, generally cannot sell real estate. Instead, the late and limited Personal Representative would confirm that the real estate is now owned by the beneficiary(ies) of the estate, and the beneficiary(ies) would then have to sell the property.
Of course, the best option is to establish an estate plan ahead of time that avoids probate and having the deceased’s estate go through the probate process at all. If that has not been done, and the deceased owned assets in his or her individual name at the time of death, it is generally better to initiate probate proceedings within three years of death. If that’s not possible, worry not, late and limited proceedings are still available to gain access to assets when necessary.
October, 2021
© 2021 Samuel, Sayward & Baler LLC
Five Things to Think About When Considering an Irrevocable Long-Term Care Trust
Five Things to Think About When Considering an Irrevocable Long-Term Care Trust
It’s no secret that the cost of long-term care is spiraling out of control in this country, and, consequently, it’s no wonder that more and more clients are expressing concerns to us about wanting to “protect” their assets from being depleted by the cost of such care. Clients will frequently mention either that they heard on the radio, TV, or the internet that they can accomplish this using an irrevocable trust or that they have a friend, neighbor, or relative who put their assets into an irrevocable trust for this purpose. While irrevocable trusts can absolutely be used to protect assets from being spent on long-term care, they are not a universal “one size fits all” solution, and they are not without drawbacks. With this in mind, here are five things to think about if you are considering an irrevocable trust to protect assets for long-term care purposes (an “irrevocable long-term care trust”):
- You Have to Give Up Control. Despite what numerous radio, TV, and internet ads would have you believe, you cannot protect your assets from being spent on nursing home care while retaining full control over them. Under federal and state law, assets in an irrevocable long-term care trust created by you (or your spouse) are subject to the “any circumstances” test, meaning that if there are any circumstances under which the assets could be distributed to you or used for your benefit, the assets will not be protected and would need to be spent on your long-term care before you would be eligible to receive public long-term care benefits (part of the Medicaid program, known as MassHealth in Massachusetts). As a result, in order for an irrevocable long-term care trust to function as intended, you cannot have any right to access the assets in the trust once they have been transferred into it, nor can the trustee (the person in charge of managing the trust’s assets) have any ability to distribute the assets directly to you or use them directly for your benefit. This means that, among other things, if your house is transferred into an irrevocable long-term care trust you will not be able to access its equity through a home equity line of credit or a reverse mortgage. Additionally, trust funds could not be used to directly pay for services for you, such as an assisted living facility or home health aides. Finally, while you would retain the ability to remove and replace the trustee, you could not serve as the trustee yourself and, therefore, would not be able to directly manage the assets in the trust.
- You Have to Have the “Right” Assets to Fund the Trust. When it comes to funding an irrevocable long-term care trust, not all assets are created equal. In particular, you cannot transfer tax-qualified retirement accounts (e.g., IRAs, 401(k)s, etc.) into a trust without immediate income tax consequences. This is because such accounts have to be converted into taxable brokerage accounts (or cash) in order to be transferred out of your individual name, meaning you would be taking a taxable distribution equal to the entire balance of the account. So, if you were to transfer a $300,000 IRA into the trust, you would have $300,000 of additional taxable income reportable on your personal income tax return for the year the transfer is made. Additionally, it is not generally a good idea to transfer a home with an outstanding mortgage into an irrevocable trust. This is because if you continue to pay the mortgage with your own non-trust funds, such payments could be considered additional gifts to the trust (since you no longer own the home in your individual name), which could create problems in the event you need to subsequently apply for MassHealth long-term care benefits.
- You Have to Wait Five Years Before Applying for Long-Term Care Benefits. In order to avoid the possibility of people transferring their assets into an irrevocable long-term care trust and then turning around and applying for MassHealth long-term care benefits the next day, state and federal law give MassHealth the authority to review all of your financial transactions for the 60 months (5 years) immediately preceding your application for long-term care benefits. Any and all gifts and other transfers for less than fair market value made during that time, known as the “lookback period,” are considered to be “disqualifying transfers,” which will delay the start of your MassHealth long-term care benefits for a period of time determined by the value of the assets transferred. If significant assets are transferred, this delay can last several months, if not years. Thus, an irrevocable long-term care trust is generally not a good idea unless you are confident that you will not need MassHealth long-term care benefits until after the end of the lookback period and/or you retain sufficient assets in your individual name to pay for your care needs during the lookback period.
- You Are Limiting Your Options Going Forward. A fellow practitioner once told me that he counsels clients that irrevocable long-term care trusts effectively guarantee that they’ll wind up in a nursing home if they need long-term care in the future. While this is a bit of an exaggeration, it is definitely true that an irrevocable long-term care trust severely limits your options going forward. This is because, as of now, MassHealth long-term care benefits are geared primarily towards nursing home care. Although there are some community-based long-term care benefits available, as a general rule these benefits do not cover 24/7 home health aides, nor do they generally cover assisted living facilities. Further, even within the realm of nursing home care, MassHealth long-term care benefits will only cover a semi-private room (meaning you would be sharing a room with someone else). By contrast, maintaining assets in your individual name gives you the ability to tap into those assets (through, e.g., a reverse mortgage or home equity line of credit on your home) to allow you to be cared for in the most comfortable, least restrictive setting possible for as long as possible.
- It Might Not Work. Eligibility for MassHealth long-term care benefits is governed by a complex web of state and federal statutes, regulations and court cases. These rules change frequently, particularly at the state level, and often apply retroactively, meaning that no exception is made for irrevocable long-term care trusts that were created prior to the new rules taking effect. Thus, what is permissible today may not be permissible tomorrow, and an irrevocable long-term care trust created under today’s rules may be in violation of the rules that exist at the time you apply for MassHealth long-term care benefits. Further, MassHealth has a history of aggressively reviewing and challenging applications for long-term benefits that include irrevocable trusts (the existence of an irrevocable trust must be disclosed to MassHealth even if it was created outside of the lookback period), and anecdotally most such applications appear to be denied on the first pass, necessitating a costly and time-consuming appeal.
A properly structured irrevocable long-term care trust can be an appropriate tool to protect assets from being spent on long-term care, but just like a power drill isn’t always the appropriate tool with which to fasten a screw, an irrevocable long-term care trust is not always the appropriate tool for long-term care asset protection. It is important, therefore, to consult with an experienced elder law attorney to determine the best tools to achieve your goals given your specific circumstances.
August 2021
© 2021 Samuel, Sayward & Baler LLC
Child Going Away to College? Don’t Forget Their Estate Plan Documents
With the month of August upon us, parents around the country are participating in the time-honored tradition of preparing their young adult children to go away to college. While it’s certainly important to ensure that they have the necessary clothing, bed linens, and other such items, it is also important to have certain legal documents in place to permit someone to make decisions and access information in the event of an emergency.
While every parent knows that a child becomes a legal adult upon turning 18, most parents fail to appreciate the full extent of the consequences. In particular, once a child turns 18, not only do parents no longer have the legal authority to make financial or medical decisions on that child’s behalf (even in emergencies), they also no longer have the legal right to access that child’s medical, financial, or educational information. This means that, without prior planning, not only would parents be unable to make medical or financial decisions on behalf of their child in the event of an emergency, they might not even be permitted to know the details of what happened or the nature of their child’s situation.
It is therefore incredibly important for college-aged children to have the following documents in place to allow decisions to be made (and information to be accessed) in the event of an emergency:
1. Durable Power of Attorney: This document designates one or more people to act on the child’s behalf regarding finances and assets (e.g., bank accounts, credit cards, student loans, etc.).
2. Health Care Proxy: This document designates someone to make medical and health care decisions on the child’s behalf if the child is unable to make such decisions.
3. HIPAA Authorization: This document authorizes the child’s health care providers to discuss the child’s protected health care information with the people named in the document. Unlike the Health Care Proxy, the HIPAA Authorization does not confer any decision-making authority on the people named in it.
4. FERPA Authorization: This document authorizes the child’s college or university to disclose the child’s protected financial and academic records to the people named in the document. As with the HIPAA Authorization, this document does not confer decision-making authority on the people named in it.
We encourage all of our clients with college-aged children to discuss these matters with their children and to contact our office if your child is interested in having these documents prepared.
The Particular Importance of Estate Planning for LGBTQ Individuals and Families
One of the goals of proper estate planning is to reduce the risk of conflict in the administration of your estate and the carrying out of your wishes both after your death and during periods of incapacity while you are alive. Though we all like to think that our families (both our legally recognized families and our chosen families) and loved ones will come together and unite during times of crisis, it is unfortunately not uncommon for such crises to lead to painful, emotionally charged conflicts.
Such cases are even more common when it comes to LGBTQ individuals whose legally recognized relatives disapprove of their lifestyle. Although acceptance of LGBTQ individuals is far greater than it used to be, LGBTQ individuals still risk being disowned, shunned, and/or shamed by their relatives if and when they come out. With that in mind, I wanted to take a moment this Pride Month to talk about the particular importance of estate planning for LGBTQ individuals and families.
The most critical thing to understand is that, in the absence of estate plan documents that say otherwise, the law favors biological and legally recognized familial relationships over other relationships. Without a valid Last Will and Testament, upon your death the assets in your individual name will pass by law to your closest legally recognized relatives (known as your “heirs at law”) through a process known as “intestacy.” In Massachusetts, even if you are married, if you die without a Will, there are circumstances where your individually held assets will be distributed among your surviving spouse and your surviving parent(s).
Similarly, if you become incapacitated during your lifetime without a valid Durable Power of Attorney and Health Care Proxy, it may become necessary to have a guardian and/or conservator appointed by the Probate Court. As in the intestacy process, the guardianship and conservatorship processes favor biological and legally recognized relationships, giving priority to your spouse and parents to be appointed as your guardian and/or conservator over romantic partners and close friends.
While having a comprehensive estate plan in place can close off many opportunities for disapproving legally recognized relatives to take control of an LGBTQ individual’s estate in times of crisis and potentially shut out or cut off the individual’s chosen family (i.e., romantic partners, close friends, etc.), not all estate plans are created equal on this front. In particular, if you have an estate plan that relies on a Last Will and Testament to control the disposition of assets after death, a public probate process will need to be initiated after your death in order to validate the Will. Part of that process involves giving notice to your heirs at law. This once again gives disapproving relatives an opening to object to the proceedings and attempt to assert control over your estate.
By contrast, a comprehensive estate plan designed to avoid the probate process will greatly reduce the ability of disapproving relatives to cause trouble. While the probate process requires that notice be given to those who would inherit in the absence of a Will even if they are not named as beneficiaries in the Will, under a Revocable Living Trust, only the beneficiaries named in the trust document are entitled to notice. Thus, if you want to ensure that your wishes are followed and that the people you choose to carry out those wishes are able to do so without interference, you should contact an experienced estate planning attorney and create a plan to achieve your goals today.
June, 2021
© 2021 Samuel, Sayward & Baler LLC
Delays Continue at the Probate Courts
They say that patience is a virtue, and when it comes to Massachusetts’ probate courts, they are right. Capacity limits imposed as a safety precaution to mitigate the spread of COVID-19 mean that court personnel across the Commonwealth are operating on a rotating schedule such that only a limited number are physically in the various courthouses at any one time. Naturally, this severely limits the courts’ capacity to process mail and issue important documents like Letters of Authority and Decrees and Orders of Complete Settlement, which require official stamps and seals. Our contacts at one courthouse have told us that they are as much as three months behind on processing their incoming mail as a result of the capacity limits. The limited staffing issues, coupled with the significant increase in the number of estates needing to be probated as a result of the 17,000+ deaths attributed to the pandemic over the past year, have placed a severe burden on the probate courts.
Beyond the issues created by COVID-19, there are county-specific issues that are exacerbating these delays. In Norfolk County, for example, the long-serving Register of Probate was elected Sheriff this past November and the new Register is, understandably, still learning the ropes. Meanwhile, Middlesex County not only split its Probate Court into two divisions last spring, its southern division moved from its longtime home in Cambridge to Woburn last fall and it unexpectedly lost one of its most experienced staff members around the same time.
As you can imagine, all of these factors combined have led to extreme backlogs at several courthouses such that even the processing of routine, uncontested cases can take weeks, if not months. While you can rest assured that we are diligently pursuing every avenue possible to ensure that our probate cases are processed in as expeditious a manner as possible, ultimately it will take time for the courts to work through these backlogs.
Five Things to Consider When Selecting a Nursing Home
Five Things to Consider When Selecting a Nursing Home
Important elder care decisions are never easy to make. The decision to transition a loved one into a nursing home can be emotional, challenging and overwhelming to say the least. The advice of an elder law attorney can be helpful in navigating these decisions. There are also numerous factors to consider when faced with this difficult decision, such as your loved one’s required level of care. Here are five other important factors to keep in mind:
- Location of Facility
How convenient is the location to family members and friends? What are the visiting hours? Location is vital, as it will determine how often the resident is visited by family and friends. Frequent visits are important as they generally contribute to the resident’s mental and emotional well-being. Furthermore, frequent unannounced visits allow staff to know that family members or friends are vigilantly overseeing the resident’s quality of care. Additionally, having family members and friends close by ensure that issues can be addressed quickly when they arise.
- Facility
What is the physical appearance of the facility? Is it clean, safe, brightly-lit and welcoming? What does it smell like? Are there outdoor grounds which are accessible and maintained to allow residents to enjoy them safely while visiting with their loved ones? What sounds do you hear?
- Staffing/Employees
The staff members at a nursing home are so important as they are going to be the ones who are responsible for ensuring your loved one’s safety and well-being. Their attitude, expertise, and professionalism are vital. You should always ask plenty of questions and spend some time observing the staff. Does the staff address residents by their name? Observe if they demonstrate a warm and respectful attitude towards the residents. Inquire about the ratio of staff to residents during each shift and the turnover in employees. Does the staff undergo continuing education and training programs frequently?
- Well-being of Residents
How do the residents spend their time? Ask to see the calendar of daily events. Do they include fitness classes, games, religious services, educational classes and other social events? Are the residents taking advantage of these activities or tucked in their rooms with the TV on and alone? Is there a library available for residents to use? Are residents taken to local community events and cultural activities, or are those activities brought to them?
- Meals
This is always a big one understandably. If possible, ask to dine at the facility, at least once. Determine whether the food is visually appealing and tastes appetizing. Look around to see whether the residents are enjoying their food or struggling to eat it. Do residents eat in a communal area or in their room? How often does the menu change? Can accommodations be made for dietary restrictions? What if a resident needs assistance eating?
It is important to consult an elder care lawyer who can assist you in making these important care choices for your loved one. An elder care attorney can advise you on the various options available to pay for the care and to connect you with other qualified professionals such as care managers (who can assist in evaluating care needs and recommending an appropriate facility). Although this is a difficult decision fraught with emotions and challenges, an elder law attorney can assist in navigating the process and reducing some of the anxieties that often accompany such a decision.
This article is from 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. 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.
October 2020
© 2020 Samuel, Sayward & Baler LLC
Understanding the MOLST Form
WHAT IS A MOLST FORM?
A MOLST Form is a medical order form (kind of like a prescription). It stands for “Medical Order for Life-Sustaining Treatment”. The form conveys instructions between healthcare professionals regarding a patient’s care. Click here to see the actual form.
DOES EVERYONE NEED A MOLST FORM? WHEN IS IT APPROPRIATE?
In Massachusetts, patients of any age with a serious advanced illness may discuss completing a MOLST form with his or her doctor. It is a common misconception that a MOLST form should be completed routinely with other health care directives. This is not the case. Again – it is only intended for patients who have a serious advanced illness.
IS A MOLST FORM THE SAME THING AS A HEALTHCARE DIRECTIVE/ADVANCE DIRECTIVE?
No, these are two different documents. Advanced directives (also known as health care proxies) are legal documents that become effective after the patient has lost capacity and is no longer capable of making his/her healthcare decisions. All adults over the age of 18 should have a healthcare proxy to name an agent to make healthcare decisions in the event of an unexpected accident or illness.
A MOLST form, however, is a medical document that contains medical orders that are effective immediately based on a patient’s current medical condition, regardless of the patient’s current ccapacity to make healthcare decisions.
If you decide to execute a MOLST form with your doctor, you also need to complete a healthcare proxy.
WHAT IS THE PROCESS FOR COMPLETING A MOLST FORM?
Before completing a MOLST form, the signing clinician (physician, nurse practitioner, or physician assistant), the patient and family members should discuss the patient’s medical condition, what should happen next, the patient’s values and goals for care and any possible risk and benefits of treatments offered. After these discussions occur, the form may be completed and signed by the clinician and the patient. The executed form remains with the patient and is to be honored by health professionals in any situation.
For a helpful website regarding the MOLST form, click here.
Five Requirements of a Valid Will
On June 8, 1948, a Canadian farmer was pinned beneath his tractor. He was discovered 9 hours after the accident and rushed to the hospital, where he later died.
A few days later, it was discovered that the farmer had scratched his Will into the fender of the tractor using his pocket knife. He had written, “In case I die in this mess, I leave all to the wife.” The fender was later removed and submitted to the Canadian court as a valid holographic Last Will and Testament.
What is a holographic will? The definition of a holographic Will, is a will and testament which has been entirely handwritten and signed by the testator. In the document, the testator (the author of the Will) must be expressing a wish to direct the distribution of his or her estate to beneficiaries.
Although the law in Massachusetts does allow handwritten wills, the Will etched by the farmer onto his tractor fender would not have been valid in Massachusetts as it was not executed with the legal formalities required by Massachusetts statutes.
Normally the task of drafting a will is best accomplished by a lawyer for wills and trusts, but when it is not, certain requirements must be met for a will to be legal in Massachusetts. A Last Will and Testament is a document that allows you to determine who will manage your estate at your death, who will inherit your assets, how and when your assets will be distributed, whether assets will be placed in trust, and who will care for your minor children. It is important to draft a will to ensure that your wishes are known and legally acknowledged. Without a Will, the laws of your state will decide who may manage your estate, who will inherit your assets, and how and when your assets will be distributed. This may not align with your intentions so we do not recommend relying on what is called the “Intestacy Statute” of your state.
In Massachusetts, there are several requirements for a Will to be valid:
1. The will must be in writing. This could include handwriting, but generally they are typed. Massachusetts does recognize nuncupative (oral) wills but only if made by a person who is in active military service or a mariner at sea. The oral Will may only be created in order to dispose of personal property. Real property cannot be transferred through a nuncupative will.
2. The will must be signed and dated by the Testator (the person making the will). If the Testator is not able to sign, someone else can sign on the testator’s behalf at the direction of the Testator and in his presence. This person cannot be one of the witnesses.
3. The will must be signed by two disinterested witnesses. Disinterested means they are not beneficiaries or potential beneficiaries of the will. In Massachusetts, a person of “sufficient understanding” shall be deemed competent to be a witness to a Will. If a witness to a will is competent at the time of his attestation, his subsequent incompetency shall not prevent the probate and allowance of such will.
If a Will is witnessed by an “interested person” the Will itself is not deemed to be invalid but the gift/bequest to the interested party and/or his or her spouse is deemed to be void.
4. The person making the will must have the mental capacity to do so. This is often called “testamentary capacity.” More specifically, the following must be true:
-
- The testator must be at least 18 years old;
- The testator must be free of undue influence or duress;
- The testator must know he is signing his will and intends to do so;
- The testator must have read, or have an understanding of the provisions of the will; and,
- The testator must be of “sound mind” which generally means he knows ‘the natural objects of his bounty’ (i.e. who his family is) and has a general understanding of the nature of his assets.
5. A handwritten will signed by the testator that meets all of the above requirements can be valid under Massachusetts law. So, in a sense, one might say that Massachusetts does permit handwritten wills or holographic wills but only if the Will was executed with the formalities outlined above.
Although a fender of a tractor might be a unique place to inscribe your final wishes, we would prefer that you work with your estate planning attorney to draft your will and reduce your wishes to plain old paper, and to ensure that the writing of your will is executed properly and in accordance with the legal formalities of the Massachusetts statutes.
This article is from the estate planning and elder law firm of Samuel, Sayward & Baler LLC, based in Dedham. 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.
June 2020
© 2020 Samuel, Sayward & Baler LLC