Long-Term Care

The Cost of Long Term Care

January 9, 2024 by Brittany Hinojosa Citron

Attorney Brittany Hinojosa Citron Discusses The Cost of Long Term Care for our Smart Counsel for Lunch Series. Please watch and if you have any questions or want to learn more please call us at 781-461-1020.

A Trap for the Unwary: Gifting and Long-term Care Medicaid Benefits

April 13, 2022 by Attorney Abigail V. Poole

“I want to give some money to my child – is that okay to do?” I often hear this question from elderly clients who visit me for the purpose of long-term care planning. The short answer is that you are free to gift a certain amount to your adult children without filing gift tax returns but it may adversely impact your eligibility to receive Medicaid benefits to pay for long-term care in a nursing home later.

Let’s say you are contemplating giving $16,000 to your child. From a tax perspective, an individual is permitted to give up to $16,000 to a recipient each year without filing a federal gift tax return. This is the annual gift tax exclusion amount as of 2022. Annual exclusion gifts may be made to multiple recipients. For example, you may give $16,000 to each of your children Alex, Ben and Cathy during 2022. If you are married, each spouse may give $16,000 to each child, meaning that Alex, Ben and Cathy may each receive $32,000, allowing you to gift $96,000 in 2022 without filing federal gift tax returns.

However, gifting almost $100,000 to your children in 2022 will be problematic should you require Medicaid to pay for your long-term care in a nursing home within the five-year period following the gifts. Medicaid is a joint federal/state government benefits program that requires specific medical and financial criteria are met before someone is eligible for Medicaid benefits to pay for long-term care nursing home costs. Upon application for such benefits, MassHealth (the agency that administers the Medicaid program in Massachusetts) will require an applicant to provide detailed financial information going back five years. This includes disclosing any gifts made during that period. If you made gifts during the so-called five-year look-back period, Medicaid considers the gifts to be disqualifying transfers. The reasoning is that if you had retained the money you gifted to your children, you would have been able to pay for the nursing home expenses out of your own pocket instead of Medicaid paying for you.

If Medicaid determines the gifts are disqualifying transfers, the recipients must return the gifted money to you to “cure” the transfer so you can pay the nursing home costs out of pocket until you are financially eligible for Medicaid again. If the money is not returned, the person who made the gift will be ineligible for benefits for some period of time. The period of ineligibility is calculated by dividing the amount of the gift by the average daily cost of a nursing home as determined by the state (currently $410). For example, that $16,000 gift to your child would result in around 39 days of ineligibility for Medicaid benefits. The real kicker is that the 39 days of ineligibility does not begin until the applicant “would otherwise have been eligible”. That means the disqualification period for making a gift begins to run after the applicant has run out of money. This trap for the unwary applies not only to gifts of money but also to gifts of other assets, such as real estate.

Making gifts of your assets to your children while also planning for a future in which you may require long-term care in a nursing home requires careful navigation. At Samuel, Sayward and Baler LLC, an attorney experienced in long-term care planning can assist you with avoiding such traps so that you and your children have peace of mind in case long-term care is necessary.

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 trust and estate planning, estate settlement and elder law matters. She is an active member and current President Elect of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (NAELA). This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.

April, 2022

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

March 1, 2020 by Attorney Abigail V. Poole

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

March, 2020

Five Important Numbers to Know for Long-Term Medicaid Benefits

December 1, 2019 by Attorney Abigail V. Poole

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

You Must Be 65 Years of Age or Older.

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

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

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

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

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

Beware the 5-Year Look Back Period!

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

The Applicable Divisor is Currently $367.21 Per Day.

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

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

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

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

December, 2019

Planning Now For Long-Term Care After Incapacity

October 1, 2019 by Attorney Abigail V. Poole

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

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

Power of Attorney

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

Health Care Proxy

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

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

October, 2019

Five Estate Plan Actions to Take In Light of the New Tax Law

January 4, 2018 by Attorney Suzanne Sayward

Some people put off their estate planning pending passage of the 2017 tax law in case there were changes in the law that would affect their planning choices. The new tax law increases the amount that each person may pass on free of federal estate tax from $5.49 million to $11.2 million. While this is great news for the super wealthy, for the 99.5% of the rest of us, the federal estate tax became a non-issue in 2010 when the exemption from federal estate tax was increased to $5 million per person.

Estate planning has always been about more than tax planning and the reasons to make sure that you have a comprehensively drafted, up-to-date estate plan remain the same as they were before the tax law changed. These include planning for the possibility that you may become incapacitated, making sure that your family is taken care of when you are no longer around to do so, protecting your children’s inheritance from the reach of their creditors, making sure minor children are properly provided for, and reducing the time and costs often associated with estate settlement.

Here are Five Actions to take to make sure that your estate plan accomplishes the goals for which it was created.

Make sure your beneficiary designations are up to date. Many a well-drafted estate plan has been undone by failed beneficiary designations. Beneficiary designations are most commonly used for retirement accounts like IRAs and 401Ks and for life insurance. However, beneficiaries may also be designated on annuities, mutual funds, investment accounts and even bank accounts. A beneficiary designation is a form typically supplied by the company or financial institution and is completed by the owner of the account or policy. The form designates the person or persons who will own the account or receive the life insurance proceeds when the original owner dies. The problems with beneficiary designation forms arise in a variety of ways, from not having any beneficiary named, to having the wrong beneficiary named, to designating beneficiaries that are inconsistent with the rest of your estate plan. This can happen because the form was never updated when the first named beneficiary passed away, or because the owner did not complete a new beneficiary designation form after creating a trust. It can even happen when financial institutions merge or one company is acquired by another and paperwork goes missing in the transition. For many people, their retirement accounts and their life insurance are their most valuable assets. Making sure that beneficiaries are properly designated on these assets is vital in making sure your estate plan works as intended.
Consider whether you should do estate tax planning to reduce the Massachusetts estate tax. Even though few people need to be concerned about the federal estate tax, Massachusetts residents, and non-residents who own real estate in Massachusetts, should be aware that Massachusetts has its own estate tax system that imposes a tax on estates valued in excess of $1 million. For married couples who have more than $1 million, basic estate tax planning can save their families $100,000 or more. Unmarried people with estates over $1 million may be able to reduce or eliminate the Massachusetts estate tax by using an Irrevocable Life Insurance Trust to own life insurance or doing other planning.
Update your estate plan to address changes that have occurred in your family or financial situation or in the law. Think back to five years ago and consider what has changed since then. Everyone in your life is five years older – does that passage of time mean that some people, like children or nieces or nephews, are now better choices to serve in fiduciary roles such as Personal Representative or attorney-in-fact under your Power of Attorney than the people you named five years ago? Have your fiduciaries moved away or perhaps you have just drifted apart and these folks are no longer good choices. What about your financial situation? Has that changed in the past five years? Perhaps you received an inheritance and your estate is now much larger than it was when you created your estate plan. Perhaps you have retired and now have concerns such as long-term care planning that you were not worried about when you were younger. In 2012, Massachusetts enacted a brand new probate law and a brand new trust law. If you haven’t met with your estate planning attorney to review your estate plan and the impact these changes in the law may have had on your plan, it’s time to do so.
If you have created one or more Trusts, make sure your Trusts are properly funded. Creating a trust as part of an estate plan can accomplish many goals. One of the primary reasons for creating a trust is probate avoidance. Probate is the court process of changing the title on assets owned by a deceased person so that the assets can be distributed to the heirs or devisees. Avoiding probate is desirable because probate can take a long time, it is expensive, it means a loss of privacy and it can be an aggravating process. A trust is a great way to pass your estate to your intended beneficiaries outside of probate but this only works if the assets are re-titled in the name of the trust during lifetime.
Learn about your options for long-term care planning and choose the one that is best for you. Long-term care is an area of concern because the cost is very high and because many people want to avoid becoming a resident of a nursing home. Meeting with an experienced estate planning attorney with knowledge of elder law to educate yourself about long-term care planning options is a must for anyone over the age of 65.

Estate planning means taking steps to make sure you and your family are taken care of in the event of incapacity or death. While tax planning is certainly a component of estate planning it is by no means the only reason. If you have not created your estate plan or if it has been awhile since you last reviewed your plan, resolve to make 2018 the year you take care of this important business.

Attorney Suzanne R. Sayward is a partner 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 certified as an Elder Law Attorney by the National Elder Law Foundation, a private organization whose standards for certification are not regulated by the Commonwealth of Massachusetts. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit www.ssbllc.com or call 781/461-1020.

January, 2018

Five Planning Considerations for Blended Families

December 1, 2017 by Attorney Maria Baler

The recent death of my teenage heartthrob David Cassidy got me thinking about Friday nights in the 1970’s when The Brady Bunch and The Partridge Family were must-see-TV. The Brady Bunch were and may still be TV’s most famous blended family. Mike and Carol Brady met, fell in love, married, and combined their individual families of three children apiece into one harmonious blended family of 6 children which encountered no problem that could not be resolved in a half-hour episode.

In the estate planning context, blended families present some planning challenges. The parties may have a prenuptial agreement by which they have already agreed upon how assets will be distributed at death, or they may have not given the issue any thought at all. Here are five issues that deserve consideration when planning for your blended family:

Division of Assets at Death. Two threshold questions are how do you and your spouse own your assets and to whom do you wish to leave those assets at death? For example, if you married later in life after your children were grown and out of the house, you may own your assets individually and each intend to leave your individually owned assets to your respective children at death. If you married when your children were very young and raised all of your children together, you may have long ago combined your assets and may intend that your assets be divided equally among all of the children. If you intend that your assets pass not only to your biological children but also to the children of your spouse, this must be accomplished by appropriate legal documents. The intestate laws that govern the distribution of estate assets in the absence of a Will do not provide for assets to pass to children that are not legal descendants (the biological or adopted children of the deceased). Those documents can also allocate assets unequally to children and step-children if that is your intention.

Planning for the Surviving Spouse. If you want to leave assets to your own children at death, will the survivor of you have sufficient assets to live on? A plan that leaves assets to your spouse with the understanding that she will leave any remaining assets to your children at her death can be a recipe for disaster. The surviving spouse can change her estate plan or beneficiary designations after the first spouse dies to leave the assets in whatever manner she chooses. Even if the surviving spouse honors the agreement, liability or long-term illness could cause inherited assets to be lost. In this situation, a trust can be an appropriate arrangement to ensure that the surviving spouse has the benefit of income or assets during the surviving spouse’s lifetime, and that any remaining assets pass directly to the children of the first spouse to die at the surviving spouse’s death.

But do you want your children to have to wait until their step-parent dies in order to receive their inheritance? What if there is a significant age difference between you and your spouse? These are all planning questions that need to be addressed in the context of each particular family’s situation. The best approach may be to split the difference, leaving some assets to children directly at the first spouse’s death, and other assets to the spouse or in trust for the spouse. This can be an especially important issue when planning for the distribution of retirement accounts in such a situation, factoring in the income tax implications of the various planning choices.

What to do with the Home? A blended family may live in a home that is owned by one spouse, or by both spouses who may have contributed equally or unequally to its purchase and subsequent carrying costs. If the home is owned by one spouse, an important planning consideration is where the surviving spouse will live when the owner-spouse dies, especially if the owner-spouse wants the home or its value to pass on to his children. A well-structured estate plan can allow the surviving spouse to continue to reside in the home for her lifetime, paying carrying costs in lieu of rent, and then pass the home (or the proceeds from its sale) to the owner’s children. If both spouses own the home, similar arrangements can be made, with the proceeds divided between both spouses’ children at the death of the surviving spouse, or when the home is sold.

Choosing Fiduciaries. Your legal documents may carefully spell out your intentions, but who will ensure those documents are administered properly and fairly? Choosing a fiduciary all members of a blended family feel comfortable with can sometimes be a challenge. This may be best addressed by choosing a third party or a professional or corporate fiduciary. Or there may be a family member who all the other family members are comfortable filling that role. In other families, two children (one from each side of the family) acting as co-fiduciaries is a good solution.

Planning for Long-Term Care. Paying for long-term care can be challenging in a blended family where spouses have maintained separate assets and do not intend that one spouse should be responsible for the care costs of the other spouse. Unfortunately, public benefit programs do not make exceptions for these circumstances, nor do they respect the terms of a prenuptial agreement the parties may have entered into. Under the rules of those programs all of the assets of both spouses are “available” to pay for the care of either spouse. If this is not the parties’ intention, consideration should be given to other planning strategies that will not leave one spouse responsible for the other’s care costs, leaving no inheritance for his or her children.

Estate planning for a blended family is not as easy as it looks on TV. Each family and its dynamics are different, and there is not one correct approach. However, it is important to take the time to plan thoughtfully for your family, to ensure that the surviving spouse is provided for, and the harmony your blended family has worked hard to achieve continues long after you are gone.

Maria Baler, Esq. is an estate planning 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). 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.

December 2017

Long-Term Care Planning

July 17, 2017 by Attorney Pamela Greenfield

To all of our clients who are looking to cross something off their to-do list this summer, check out this interesting read from last week’s “Your Money” Section of The New York Times. It’s never too early to start the conversation about long-term care planning! This article shows us that even people who consider themselves well-prepared financially and legally can be affected by unexpected circumstances and care costs. If you are in your 50’s or beyond, make sure you have had a conversation with one of our attorneys about for any long-term care you may require and what planning steps you may want to take now to plan for the unexpected.

July 2017

Dementia Friendly Massachusetts

June 9, 2017 by Attorney Maria Baler

The Massachusetts Executive Office of Elder Affairs has a new initiative to raise awareness about the prevalence of dementia in our state, in an effort to make our communities and those who live in them more “friendly” to those who suffer from dementia. Did you know that one in eight older adults in Massachusetts has Alzheimer’s disease or a related disorder? Nearly 60 percent of those with dementia live in their own communities. One in seven of those with dementia lives alone.

Those who suffer with this disease, and their caregivers, need support, and Massachusetts is one of the states taking the lead in this “dementia friendly” initiative. Please watch this short 2.5-minute video to learn more about the Dementia Friendly Massachusetts Initiative. We were so pleased to see our wonderful clients Al and Jackie DeMeo in the video. Hopefully it will inspire you to work with others to make your community safer, more inclusive, and respectful for residents affected by Alzheimer’s disease and related dementias.

June 2017

MassHealth Update

February 27, 2017 by Attorney Pamela Greenfield

2017 started off with a bang in the MassHealth world! The end of 2016 brought with it some unexpected proposed MassHealth regulation changes which forced elder law attorneys across the state to scurry like mad before the holidays to review and comment on the new regulations which were originally set to take effect on February 1, 2017 but still have not been officially implemented. Some of the most impactful changes are the proposed elimination of pooled trusts for nursing home MassHealth applicants over the age of 65, and no longer permitting MassHealth applicants to fund supplemental needs trusts for non-child beneficiaries. While the written comments prepared by MassNAELA members as well as the testimonies of 15 lawyers at a public hearing in Worcester in mid-December may prove helpful in convincing MassHealth to reconsider some of the changes, we expect that many of the proposed regulations will take effect soon.

On January 5, 2017, the Massachusetts Supreme Judicial Court (SJC) heard oral argument on two pending irrevocable income only trust cases. We should finally receive some clarity on the future of these trusts for MassHealth planning this spring. Stay tuned for updates in this ever-changing area of the law!

February 2017