Power of Attorney

From Summer Fling to Forever: 5 Estate Planning Considerations for Couples

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Summer is approaching. The warm air, the sunshine boosting our serotonin, and those summer nights spark summer romance which can be just a fling, or it can be the start of a deep, transformative relationship. June also marks the beginning of wedding season and, of course, Pride Month, where we celebrate the LGBTQ+ community and all forms of love.

Whether you are married or not, estate planning is critical in providing for your special someone when you are gone. It is also important to plan for your incapacity to ensure that your partner can take care of you and your well-being. Here are 5 things every couple should consider when planning their forever.

1.Don’t assume that everything will go to your spouse or significant other at your death.

A lot of couples assume that when one of them dies, all of their property goes to their spouse or significant other. Sometimes this is true, and sometimes it isn’t.

If you don’t have a Will, the intestate laws of Massachusetts will determine who will inherit your estate. If you are married and all of your children are children of the marriage, then your estate will pass to your spouse. But if either you or your spouse have children from another relationship, then your spouse will only receive the first $100,000 plus 50% of the remaining estate.

If you are married and don’t have children, and you have at least one surviving parent, then your estate will be divided between your spouse and your parent(s). Also, if you are not married to your partner, regardless of how long you have been together, your partner does not automatically inherit your estate. Don’t put off creating an estate plan on the assumption that everything will pass to your spouse or partner anyway, because that may not always be the case.

2.Don’t assume that your spouse or significant other will be able to do everything for you if something happens to you.

Planning for you and your partner’s incapacity is just as important as planning for after your death. If you become incapacitated, your medical provider will typically look to your next of kin to make healthcare decisions on your behalf. Unfortunately, if you are not married to your partner, your partner is not considered your next of kin, so they won’t be able to make healthcare decisions on your behalf, when your partner is probably the one person who best knows your wishes. Executing a Health Care Proxy can fix this issue by designating your partner as your healthcare agent to make decisions for you should you become incapacitated.

This issue also arises with handling your finances. Without a Power of Attorney, your partner will not have the authority to act on your behalf with your finances if you become disabled or incapacitated. This is especially important when you rely on both of your incomes to maintain your household and pay expenses.

3.Strategies to reduce estate tax liability.

Married couples can utilize different estate planning strategies to minimize tax liabilities after their deaths and maximize the inheritance for their beneficiaries.

Property passing to a U.S. citizen spouse at the death of the first spouse passes free of federal and Massachusetts estate tax, regardless of the amount. The federal estate tax exemption is the amount that each person is permitted to pass on free of any federal estate tax, which is currently $13.61 million per person for 2024. This translates into $27.22 million for a married couple.

Massachusetts has its own estate tax system, and the exemption is $2 million per person; but, it is a “use it or lose it” exemption, meaning that if a married couple has a $4 million estate and they own all of their assets jointly or have each other named as beneficiary, when the second, surviving spouse dies with a $4 million estate, there will be Massachusetts estate tax of $180,800 due. If you “use” the $2 million exemption on the first spouse’s death through a credit shelter trust, you could reduce or even eliminate the Massachusetts estate tax liability when the second spouse dies.

Couples should be aware of these thresholds and talk to an estate planning attorney about estate planning strategies such as gifting or setting up trusts to minimize their tax liability.

4.Advanced planning for long-term care (nursing home) costs.

If you and your spouse have the gift of time, then you need to think about how you will pay for long-term care costs in the future. Long-term care planning involves preparing for the potential need for nursing home care. Although long-term care is primarily associated with older adults, it can be necessary for anyone with chronic illnesses, disabilities, or injuries that limit their ability to perform daily activities. According to the U.S. Department of Health and Human Services, 70% of Americans aged 65 and over can expect to use some form of long-term care during their remaining years.

There are different estate planning strategies that married couples can use to ease the cost of long-term care and preserve assets in the event they need to apply for Medicaid.

Growing old together also means planning on taking care of each other financially if one of you needs care.

5.Don’t be scared to discuss a prenuptial agreement.

Before you say “I do”, consider a prenuptial agreement to protect your assets in the event of divorce. Many couples don’t want to talk about a prenuptial agreement because no one wants to talk about divorce before you’re even married. But you can protect your wealth, your family business, and even children from a prior marriage from losing out on an inheritance by entering into a prenuptial agreement. Consider a prenuptial agreement if your assets or circumstances are such that you want added assurance that no matter how matters of the heart may go, your assets and your children will be protected.

Knowing these aspects of estate planning can help couples protect their assets, ensure their wishes are carried out, and provide for their loved ones. There is nothing more romantic than presenting a well-thought-out estate plan to your partner (said the estate planning attorney).

 

Attorney Brittany Hinojosa Citron is an associate attorney with Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of trust and 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.

June 2024
© 2024 Samuel, Sayward & Baler LLC

 

The Importance of Planning for Incapacity

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I run into clients often who jokingly tell me “I’m not going to die” when discussing their estate planning.  Although many of us would like to think we are immortal, it is a fact that we will all die sooner or later.  Harder to imagine for many people is that they may experience a period of incapacity prior to death.  This may happen due to hospitalization or illness, or due to dementia in one of its many forms, including Alzheimer’s disease.  

It is just as important to plan for incapacity as it is to plan for death.  As we often tell our clients, planning for incapacity may be even more important, because you are still alive and will be directly impacted by how your assets are managed for you and who is in control on your behalf.  Whatever happens after your death will impact those you leave behind, but for better or worse will not impact you!

Planning for your incapacity is serious business.  It involves identifying people you can trust, and creating documents that will allow them to assist you if and when you need or want assistance in the future making financial, legal or health care decisions.  Planning for incapacity involves:

  • Creating a Power of Attorney that names a person who you authorize to handle your legal and financial affairs if you are unable to do so.  This should be someone you trust implicitly to handle things appropriate and in your best interest.
  • Creating a comprehensive list of assets, legal and financial advisors, beneficiaries, digital asset access information, and other information that will be crucial to someone who may have to take over your financial affairs unexpectedly.
  • Creating a Health Care Proxy that names a Health Care Agent to make health care decisions for you if you are unable to make those decisions yourself.
  • Making sure your Health Care Agents understand your wishes about the type of care you want to receive, particularly at the end of life, and even more importantly if you become incapacitated and are unable to articulate your care preferences at that time.  There are many organizations that assist people to express those wishes – The Conversation Project is one of many.
  • If you already have these documents, reviewing them periodically to determine if the people named in the documents are still trusted people you can count on to be there if you are not well.
  • If the people you have named are getting older or are not well, do you have appropriate alternates named to take their place if they cannot (or do not wish to) serve in those roles if the time comes?

In these documents you can also designate a person to serve as your conservator or guardian should a court need to step in and appoint a person to make decisions for you.  This can help avoid a situation where you need assistance and the Court must appoint someone to make decisions for you, who may not be someone you would have chosen.  I am reminded of the recent move I Care a Lot, a black comedy / thriller distributed by Nexflix in 2020, starring Rosamund Pike who won a Golden Globe for the role. The movie tells the story of a professional legal guardian who has less than good intentions.    Although the movie is not based on a true story, it is based on real-life situations and scams like one that occurred in New York in 2013.

Unfortunately, this past year and a half has taught us that life and health are unpredictable.  Make sure you have all your bases covered, and have chosen and named people you trust to handle things for you if you are unable so you don’t end up vulnerable to those who may take advantage of your situation.

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), and the current President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. 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.

August, 2021

© 2021 Samuel, Sayward & Baler LLC

 

Young adults and the Power of Attorney and Health Care Proxy

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Attorney Abigail Poole discusses young adults and the Power of Attorney and Health Care Proxy for our Smart Counsel for Lunch Series. Did you know that when a child turns 18 that parents loose the right to make financial and healthcare decisions for them? If you have any questions or want to learn more please call us at 781 461-1020.

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

 Lessons Learned from an Injury

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In late December, I slipped on some ice and broke my right ankle. I had surgery on the ankle in mid-January, and I am still in the process of recovering and working toward “getting back to normal.”  As they say, “hindsight is 20/20”, and I have thought about what may have made the entire experience easier for both myself and my family members, friends, and work colleagues who have assisted me during this time. Below I share a few things that may help you be more prepared in case you encounter a similar situation.

  • Health Care Proxy – Confirm your primary care physician has a copy of your most recent Health Care Proxy naming individuals to make health care decisions for you when you cannot (your “health care agent”). If you go to an unfamiliar hospital emergency room due to the injury, you cannot get your hands on a copy of your current Health Care Proxy, and you are cognizant, you may wish to request a Health Care Proxy from the nurse and complete it.  While it will revoke your current Health Care Proxy, at least you will have given authority to your agent to make health care decisions if surgery is immediately required, and you will have provided the hospital with your agent’s contact information.
  • Power of Attorney – Confirm your Power of Attorney is up-to-date and appoints the individuals you want to be responsible to pay your bills and make financial decisions on your behalf if you cannot (your “attorney-in-fact”). To assist your attorney-in-fact, create a list of the expenses you pay monthly. Include the company, account information, and when payments are typically due. A list of bank accounts from which bill payments could be made may also be helpful to your attorney-in-fact. Tell your attorney-in-fact and one or more trusted family members and/or friends where in your home this documentation can be found in the event of an emergency.
  • Emergency Contact – If you carry a mobile phone, program in the contact information of an “In Case of Emergency (ICE)” person. Smart phones permit you to enter medical identification information, such as allergies, in addition to an ICE person which can be accessed without your password.
  • Online Ordering – Consider online options to get daily and other necessities.  There are several companies online that will deliver items to you at your home. I have ordered everything from medical supplies to groceries online these last few months and it has been incredibly helpful.
  • Gratitude – Have gratitude for the kindness, compassion, and support you receive from family members, friends, and work colleagues while you navigate through the injury and recovery process.

In the meantime, if you visit the office and hear faint clangs and thumps, please do not be alarmed –  that is probably me navigating the office on my crutches while I work toward getting back on my two feet again!

Everybody Speaks a Secret Language

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A couple of weeks ago I took my car in for a service appointment because the car was all stutter-y and the ‘Service Engine Soon’ light had come on.  The service folks told me that the ‘ignition coils’ needed to be replaced and that the ‘valve cover gasket’ was leaking and also needed to be replaced.  When I picked up the car, the service light was off and the car drove fine – no more stuttering – so clearly the analysis of the problem and the solution were correct.  However, I left the service department a bit lighter in the wallet than when I went in and with no real understanding of what had happened other than my car had been broken and now it was fixed.

This started me thinking about the fact that everybody speaks a secret language.   If I knew how a car engine works, what the parts are, or how they all fit together, my experience may have made perfect sense.  But I don’t.  Terms like ‘ignition coils’ and ‘leaky valve cover gaskets’ are as foreign to me as ‘je suis confus’ (that’s French for, ‘I’m confused’).  The same holds true for other professions – think doctors, dentists and even hairdressers (what the heck is balayage?)!

Estate planning attorneys also speak a secret language that can leave clients puzzled about the advice they receive.  While you may not need feel the need to know exactly what your mechanic means when he tells you that you to replace the evaporative emissions purge control valve on your car, it is important to understand what your estate planning attorney means when she tells you that you need to name a successor attorney-in-fact in your durable Power of Attorney.

Estate planning is about the most important thing to most people – their family.  Understanding how the decisions you make in your Will, Trust, Power of Attorney, etc. (or that you fail to make if you do not have an estate plan) will affect the people you love is vital.  So the next time you are meeting with your estate planning attorney and she advises you to “convey your real estate to a nominee Realty Trust so that it can be used to fund your credit shelter trusts,” make sure she explains ‘the why’ of this to you and that you understand that explanation.  In the meantime, if your mechanic tells you that your car needs a new flux capacitor, you might want to look for a new mechanic!

February 2018

© 2018 Samuel, Sayward & Baler LLC    

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

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