Covid-19

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

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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.

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 www.ssbllc.com or call 781/461-1020. 

May, 2020

© 2020 Samuel, Sayward & Baler LLC

Remote Notarization Is Here!

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For those of you hoping to sign your estate plan documents from the comfort of your home, we have some good news to report.  After weeks of hard work by a number of Massachusetts attorneys including our own Abigail Poole, we finally have a law that will allow notaries to acknowledge signatures via video conference.  On Monday, Governor Baker signed the Virtual Notarization Act into law, a temporary measure effective only during and for three days after the current COVID-19 state of emergency.  This law permits attorneys (or paralegals under the supervision of attorneys) to notarize estate planning and real estate documents remotely using video conferencing, without being in the physical presence of those signing the document.

There are many technical requirements that must be followed in order for the document to be validly notarized, including:

  • the signers must state on the video that they consent to the session being recorded
  • the notary and all witnesses must observe the signing via video conference
  • all parties be physically located in Massachusetts at the time of the signing
  • the signers must disclose who is in the room with them and provide visual evidence on the video of everyone who is physically present in the room with the signers
  • the signers must present their identification to the Notary during the video session and must send a copy of that identification to the Notary
  • the video conference must be recorded and retained for 10 years
  • the documents being notarized must contain special language stating that they were notarized in this manner
  • a separate affidavit be completed and signed by the Notary regarding the session
  • the documents must be returned to the Notary for notarization before they are complete and effective
  • real estate documents signed in this manner require a second video conference between the Notary and the signer after the documents are received by the Notary before they can be validly notarized.

Although we are happy to have this option for clients who are unable to leave their homes or do not wish to do so, our curbside signings – variously referred to as “Car Hop” signings or “Wills on Wheels” – are also a popular and efficient way to sign documents in this time of physical distancing.

Maria Baler, Esq. is an estate planning lawyer and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and currently serves on the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, please 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.

April 2020

© 2020 Samuel, Sayward & Baler LLC

Five Answers to Your Estate Planning Questions in Uncertain Times from An Estate Planning Attorney

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In light of the COVID-19 pandemic, many people have questions about what will happen if they get sick or pass away.  As estate planners, these are questions we think about and answer every day.  Our goal as estate planning attorneys is for everyone to have an updated estate plan that will ensure you and your family are taken care of in the event of illness or death.  However, there are many folks for whom estate planning has not made it to the top of their To Do list.  Here are five answers to many of the questions we are hearing (over the phone and online), and some steps you can take in the short run to give yourself some peace of mind.

  1. If I am hospitalized, who will decide what type of treatment I receive?

If you are able to make and communicate your own health care decisions, the doctors will look to you to make those decisions for yourself.  If your illness is such that you are no longer able to make or communicate your own decisions, and if you have signed a Health Care Proxy, the doctor will look to the Health Care Agent you named in that document to make health care decisions for you.

Hopefully, if you are hospitalized, you already have a Health Care Proxy. If you do not have a Health Care Proxy, consider downloading, printing and completing the Massachusetts Health Care Proxy form here, and follow the instructions carefully.  When the form is completed and signed, give a copy to your primary care physician and to each of your health care agents.

If you do not have a Health Care Proxy and your illness makes it impossible for you to create one, your family or the medical facility where you are resident may need to ask the Court to appoint a guardian for you.  Your court appointed guardian would have the legal authority to make health care decisions on your behalf.

If you name a Health Care Agent in a Health Care Proxy, take the time to communicate your health care wishes to your Health Care Agent.  There are many online tools available to facilitate these discussions.  You can find a lot of good information and tools that will help you create a Health Care Proxy and discuss your health care wishes with your Health Care Agents on the Honoring Choices website. Additional tools can be found on the website of the American Bar Association’s Commission on Law and Aging. For discussions about end of life care, check out the Conversation Project.

  1. Who will make financial decisions for me if I can’t make them for myself?

Financial decision-making is an important part of our daily life.  If you are unable to make these decisions yourself, you will need someone to pay your bills, file your income tax returns, manage your investments, sell or mortgage real estate, take distributions from your retirement accounts, and a variety of other things that arise on a daily basis.  A Power of Attorney designates a person to handle financial matters on your behalf.  The designee is called your attorney-in-fact.  Many people name their spouse or an adult child as their attorney-in-fact.  A so-called “durable” Power of Attorney permits action even after the person who created the document becomes incapacitated.

The law requires that the Power of Attorney specifically authorize the actions your attorney-in-fact may undertake on your behalf.  For this reason, Powers of Attorney are typically drafted by an estate planning attorney who will tailor the powers granted to address your particular situation.

If you do not have a Power of Attorney and you become incapacitated, your family may petition the court to appoint a Conservator for you.  A court-appointed conservator will have the legal authority to manage your financial affairs under court supervision.

  1. If I die and do not have a Will, what will happen to my assets?

If you pass away and have not signed a Will, the distribution of your assets depends on how your assets are owned, or whether a beneficiary has been designated to receive that asset at your death.

Assets that are jointly owned with another person (for example, your home that is owned jointly by you and your spouse) will (usually) pass automatically to the surviving joint owner.

Assets for which a beneficiary is designated (for example, your life insurance policies and retirement accounts) will be paid to the beneficiary you have designated to receive that asset at your death.

While joint ownership can seem like an easy way to ensure a person receives an asset at your death, keep in mind that adding a joint owner to an asset carries with it tax, ownership, liability and other implications, and should not be done before consulting with an attorney.  Beneficiary designations are also best made in consultation with your estate planning attorney to ensure the designations do not disrupt the other provisions of your estate plan.

If you do not have a Will, for assets owned in your individual name without a joint owner or beneficiary, those assets will be distributed at your death according to the Massachusetts intestate laws.

If you are married, all of your assets will pass to your spouse if (a) you have no children or parents living, or (b) all of your children are also your spouse’s children, and your spouse has no children that are not your children.

If you are married and have no children, but you have parents living, your spouse will receive $200,000, plus three-quarters of the remaining assets, and your parents (or your surviving parent) will receive the rest.

If you are married and you have children who are also your spouse’s children, and either you or your spouse has a child who is not your spouse’s child, your spouse will receive $100,000, plus one-half of the remaining assets, and your children will receive the rest.

Without a Will, if you are not married, all of your assets will go to your descendants.  If you have no descendants, all of your assets will go equally to your parents, or to your surviving parent.  If you have no descendants or surviving parents, your assets will go to your siblings.

If a person is under the age of 18, any assets they inherit cannot be legally owned by them.  The court will appoint a Conservator to manage those assets for the minor’s benefit until the minor reaches age 18, at which time the minor will receive ownership of the assets.

  1. What will happen to my minor children if I pass away?

If you don’t have a Will appointing a Guardian for your minor children, the court will appoint a Guardian who will have physical custody of your children, make decisions about where your children will live and go to school, their religious upbringing, and also make health care decisions for them.

If you have a Will, your Will will name the people you wish to be appointed as Guardian of your children.  In all cases, the Court will determine who to appoint as Guardian based on what the Court determines is in the best interests of the child at the time.

Parents of minor children should also have a document that appoints a temporary guardian who will have authority to take temporary physical custody of a child until the permanent Guardian can be appointed by the Court.

If you have young children, consider creating a letter of instruction that provides important information about each child – the name and contact information for the child’s physician, allergies, other important medical information, food preferences, schedule, friends, activities,  and other things you think someone should know if they had to care for your child unexpectedly.

  1. Where will my family begin if something happens to me?

One of the most important things you can do is get organized.  Take the time to identify a place in your house where you keep important information and documents and let trusted family members know where that is.   Consider a well-organized filing cabinet with clearly labeled folders and treat that as your estate planning repository.  Include copies of your legal documents such as Wills, Trusts, Powers of Attorney and Health Care Proxies, as well as the contact information for your estate planning attorney, accountant and financial advisors.  Also included should be recent account statements, life insurance and homeowner’s insurance policies, retirement account information, etc.

Compile and include a list of your assets (bank accounts, investment accounts, annuities, life insurance, retirement accounts, etc.) that includes the institution where each account is located, the account number, your contact person at that institution (if any) and their contact information. Also include a list of usernames and passwords for any important online accounts – financial, photo storage, email, social media, document storage accounts.  Keep these lists updated and in the place where you keep other important papers so that they can be found.

If you have a safe deposit box, make sure at least one other trusted family member’s name is on the box so that they will have access after your death. This is especially important if your original Will or other estate plan documents are in the box.

A comprehensive estate plan drafted by an estate planning lawyer will address all of these issues – name guardians for your children, specify how your assets will be distributed at your death, designate decision-makers for financial and health care decisions if needed, and so much more.  If you are concerned about not having legal documents in place, contact an estate planning attorney.  Resist the urge to create these documents yourself. Whether on the back of a napkin or online at Legal Zoom, there is no substitute for the advice of an experienced attorney who will provide advice tailored to your particular family situation, your assets, and the tax and probate laws of your state of residence.  If you are feeling concerned about the state of your estate plan, or lack thereof, give your local estate planning attorney, including our office, a call – we are here to help.

Maria Baler, Esq. is an estate planning lawyer and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and currently serves on the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, please 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.

April 2020

© 2020 Samuel, Sayward & Baler LLC

Coronavirus Update & Remote Estate Planning

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Dear Clients, Colleagues and Friends,

We hope this finds you all well and safe! As promised, we want to give you an update on our plans in light of Governor Baker’s emergency order of this morning.

We are and will continue to be “open” for business as we are well-equipped to work remotely, including meeting with clients by phone or video conference. However, in compliance with the Governor’s order, we closed our physical office beginning Tuesday, March 24 at noon until Monday, May 4th (assuming we are permitted to re-open at that time), which means we will not be able to physically meet with clients to sign documents during that time.

We want you to know that we are here to help you. You are welcome to reach out to any of us by phone or email at any time. If you would like to schedule a time to speak or video conference with us, please email Jennifer Poles (poles@ssbllc.com) or Lynne Abe (abe@ssbllc.com) or call the office at 781-461-1020.

In other news, Attorney Abigail Poole of our office has been involved with proposed legislation, supported by hundreds of attorneys statewide, to allow attorneys who are notaries to conduct meetings to sign documents in a virtual manner via video conference. Keep an eye out for information about how you can support this effort by contacting your legislators.

We will continue to keep you updated as the situation evolves, and continue to wish you and your family health and safety during these uncertain times.

Suzanne R. Sayward
Maria C. Baler
Julia K. Abbott
Abigail V. Poole

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

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