Massachusetts Estate Planning and Elder Law

Caregiver's Corner - Resources from Around the Web

All the links will open in a new window, so feel free to click as you read knowing you won't lose this page.

Shambala Sun , the Buddhist magazine, focuses their recent issue on caregiving and illness. They have an audiodownload by Frank Ostaseki whose mission is to seed "our culture with innovative approaches to end-of-life care that reaffirm the spiritual dimensions of dying."  On July 6th he will be taking questions from people about caregiving and practicing with an illness. 

There was a recent article about the beneficial effects of relaxation techniques and Montessori methods on people with Alzheimer's and dementia.  This article goes into more detail on what Montessori methods are and how they can be used when working with people with Alzheimer's.  (Thanks to AgeInPlace.com for pointing the article out to me.)

Babyboomer Knowledge Center has a recent article on talking to your parents about when to stop driving.  Given all the talk in Massachusetts about retesting older drivers, you may be having this conversation sooner than you think. 

AgeWiseLiving, a fantastic resource for caregivers, offers a caregiver success kit along with teleseminars, and a radio show.  I will be speaking on the show on July 29th about guardianships so subscribe to my site (by putting your email address into the box on the right) to get notification of the show. 

And remember the instructions by the flight attendants to "put on your own oxygen mask before helping someone else with theirs."  Take time for yourself every day and don't wait to ask for help when you need it. 

Protecting Your Privacy and Your Children's with a Trust

There has been much talk in the media lately about Michael Jackson's death - what he owed, what he owned, and who would get it.  People were waiting for his Will to be presented to the Court to perhaps get a deeper look at his financial life.  Well, his will was presented to the Court today Download Michael Jackson's Will.  And as you can see, the only thing the Will tells us (other than the fact that Diana Ross is named as the alternate guardian of his children) about his property is that everything gets "poured-over" into the Michael Jackson Family Trust.  The Will is public record, as all Wills are, but the Trust is a private document which lays out in more detail how he wants his property distributed and who will manage it.  This Trust does not get submitted to the Court for probate.  By drafting a separate Trust, Michael could (to the extent possible given his status) preserve some privacy for himself and his children. 

The things that you can keep private with a Trust are: 

• Charitable bequests that are made (not everyone needs to know what charities you support),
  
• At what ages the children are to receive any inheritance outright (if this information is in the public record, what types of people might swoop in to help your children with their new-found wealth),
  
• If any of your children have special needs or addictions which would require additional oversight or management of their property well into their adult life,
  
• The items of personal property that you may be passing along, the value of those items and the name and address of the person who inherited it.  Yes, all of that information is contained in the Probate file for a Will and is public record.

By having a stand-alone trust drafted with your estate plan, as opposed to just a Will, you are protecting your private information and your children's.  You are allowing family matters to stay where they belong, in the family. 

Choosing Long Term Care Insurance

I have many clients who have long term care insurance, and many who don't.  From what I've seen, my clients with long term care insurance have many more options when it comes to choosing care and choosing where they live than my clients who don't.  The New York Times has a recent article about how to choose a long term care insurance policy.

One of the first questions people always ask about long term care insurance is "how much does it cost." The costs vary widely depending on the age you are when you obtain the policy, how much the policy will cover (they usually cover a certain dollar amount per day) and how long the policy will pay for care.  Other policies may give you a "bucket" of money and your coverage lasts until it is gone.

Long term care insurance covers things that traditional Medicare and health insurance don't - medical care in the home, longer term care at a nursing home, and even pay for assisted living costs.

The time to start looking into policies is in your 50's, since the premiums will be lower than if you start later, and there is less of a chance that you will suffer from a health problem that could cause your premiums to be extremely high or prevent you from getting coverage all together.

A long term care insurance policy will kick-in when the policy holder is unable to perform one or more activity of daily living (bathing, dressing, eating, walking).  Check your policy since they can vary in terms of how many ADLs you must be unable to perform before coverage will start. 

Things to look for in a policy:

• Where can the care be provided? Home, nursing home, assisted living.  Most people want flexible options.
• What types of caregivers can be paid by the policy? The article recommends a policy that covers
  "skilled, intermediate and custodial care,” which would include someone who could assist with laundry and meal preparation. 
• What illnesses are covered? Be sure that illnesses such as Alzheimer's aren't excluded from coverage, which was common in some of the older policies.  Read the list of exclusions on any policy before you buy it.
• Does the policy provide inflation protection? What seems like adequate coverage now, may not be what you need in 20 or 30 years if it doesn't keep up with inflation. 

To control the costs of the policy, the article has the following tips:

Avoid lifetime benefits. Opt instead for a policy that covers a set amount of time, like four or five years, suggests Ms. Driscoll. The average nursing home stay is two to three years, she points out, and only 12 percent of patients live longer than five years once they enter.

Look for a policy that pays a monthly sum. Most policies specify a daily benefit — anywhere from $50 to $500. Recently insurers have begun using a monthly amount so you have the flexibility to receive more care on some days, when no family member is available, for example, and less care on others.

Consider a front-loaded policy. With these, you pay the entire cost of the premiums before you retire. You’ll pay more upfront, but payments will end just as your income decreases.

Look into cash benefit policies. Once benefit payments kick in, these policies will send you a regular cash payment, say $200 a week. Instead of filing claims for specific care (with specific requirements to qualify for coverage) you are free to use the payout however you see fit.

You may still pay the nursing home or home health care attendant with the money when the need arises. But you can also use the cash to pay a family member for care, pay travel expenses for a visiting relative and take care of other expenses that would not be reimbursed under a traditional policy. You’ll pay more for these policies, but some families find the extra flexibility is worth it.

Find a good agent. You’ll need someone who is experienced in long-term care, Ms. Driscoll says. This might be the same insurance agent who sold you your life and auto policy, or you may need to find a specialist. Either way, make sure the person fully understands your needs and is active enough to be selling at least a dozen policies a year.

Paying for in-home or nursing home care privately can often exhaust a person's resources leaving them far fewer options when their funds run out.  By obtaining long term care insurance, a person often can remain in their home far longer than without the insurance, and make sure that a spouse or other family member doesn't become impoverished by the cost of care.  In addition, many people find that it allows them to preserve assets to pass on to the next generation, and that it fits in well with their overall estate plan. 

New Caregiver Authorization For Minor Children Living With a Non-Parent

For various reasons a minor child will sometimes go and live with someone besides his or her parents.  Maybe the parents are struggling with health or substance abuse issues and their child goes to live with a grandparent.  Maybe a teenager wants to finish their last year at school and will live with a friend while their parents move to a different state.

In the past, in order for the caregiver to have the authority they needed to deal with health care providers and school systems, a guardianship was needed.  This took time to obtain, and replaced the parent's rights to make decisions for their children during the time that the guardianship remained in effect.  It also involved the Court to initiate the process, and to terminate the guardianship.

A new law has been put into place to allow a parent to give a caregiver (the person the child is living with) concurrent authority to make educational and health care decisions for a minor child.  (See MGL Ch. 201F for the law and a sample form)  The Act Relative To Caregiver Education and Health Care Authorization allows a parent (it only needs to be signed by one parent) to authorize a person with whom their child is residing to "exercise concurrently the rights and responsibilities, except as prohibited by the parent, that the parent possesses relative to the education and health care of the minor children." 

The parents can specify any actions that the caregiver is not allowed to take, and the parents continue to retain their authority to take any and all actions related to their children's health care and education.  The parent's decision supersedes the caregiver's decision if there is a dispute. The caregiver signs an acknowledgment that they will not knowingly make any decision that conflicts with the decision of the child's parent or other legal guardian. 

The document remains in effect until the date specified by the parent, not to exceed 2 years, and can be revoked or amended by the parent at any time. The document should be shared with the child's school and health care providers.  If it is revoked or amended, the new copy or revocation should be given to anyone who had a copy of the old one.  The only time the Probate Court would need to be involved is if there is a dispute that cannot be resolved.

This new law will go a long way to help those families who need some assistance in caring for their children, without needing Court involvement and the time and expense that entails. 

Living Wills for Children, or "I Want My Pepsi Now"

Many many years ago, before I was born, a beloved young cousin in my family was sick, and dying of leukemia.  Towards the end of his life, there was a sign above his bed that said "nothing by mouth," meaning he should not have anything to eat or drink as he was getting his nutrition intravenously.  As the story goes, one night he began to say "I want my mommy now, I want my Pepsi now" over and over.  His mother was with him, and after a few minutes someone went to get him a Pepsi.  A nurse or someone was concerned because the instructions were to not give him anything to drink.  She asked the doctor about it, and was told "It's ok, it's what he wants and there isn't much time."  Even at the tender age of 3, he knew what he wanted at the end of his life and he asked for and got it.  We should all be so lucky.

I was reminded of this story today while I was reordering Five Wishes Living Wills for my clients, and saw that the company now offers a version of this document for children, called My Wishes. 

Much like the adult version, this booklet walks the child through their wishes for how they want to be treated, how comfortable they want to be, what they want their friends and family to know, what they want their doctors and nurses to know, what their likes and dislikes are and what things will make them feel better.  What a great way for a child in the hospital or facing an illness or chronic condition to feel like they have some control over what is happening to them. 

I offer the Five Wishes Living Will to my adult clients, and will now be offering the My Wishes children's version for those clients who want them for their children. 

You can download a sample of the My Wishes booklet here: Download Five_Wishes_MyWishes_Final, and place an order here. 

When Your Child With Special Needs Turns 18 - Guardianship is Not the Only Option

I often receive calls from parents who are challenged by their children’s mental health, emotional, or behavioral needs, and those children are turning 18 soon.  "I need a guardianship over my son, he's turning 18."  As I talk to the parents I find out that the son is in mainstream school, holds down a job and is getting his driver's license.  Not exactly the prime candidate for a guardianship. 

However, these young men and women may still need and want their parents or other relative to be involved in their care, to help them with their banking, to be able to get information from their doctors in the event of a hospitalization, or to be able to call the insurance company to check on a claim.   In order for someone to assist the child after they turn 18, the child will need to sign legal documents giving another person permission to obtain information or take action on their behalf. 

A signed health care proxy will allow the appointed parent or relative to make health care decisions if the child is deemed unable to make those decisions for themselves.  The signed HIPAA release will allow the appointed person to obtain medical information on the child's behalf and talk to health insurance companies about claims and other issues.  And a signed durable power of attorney will allow the parent to assist the child with their property and finances. 

If you are thinking about bringing your over-18 child to an attorney to talk about these documents, keep in mind that the attorney will need to speak to your adult child privately to find out what their wishes are, and that the adult child is the client, not you.  This is true even if you are paying the bill.  The child can give their permission for some information to be shared with you and can request that you be in the room for most of the meeting, but they will also have the right to tell the attorney things that are kept confidential.  

You should not use your own personal estate planning attorney to have these documents drafted for your child.  This is because if your child were to ever need a guardianship or conservatorship, your own attorney has now become your child's attorney as well and would not be able to assist you in pursuing a guardianship over your child. 

There are indeed many cases where a child with special needs does need a guardianship or conservatorship, but there are just as many or more cases where having legal documents in place to allow the adult child to have assistance with their health and financial matters while retaining their legal rights is the most appropriate course of action. 

I will be speaking on this issue in September at the Transitional Age Youth Group of the Parent Information Network, which is a is a parent information support and advocacy program designed by parents and professionals to help families that are challenged by children’s mental health, emotional, or behavioral needs.

Estate Planning Before, During and After Divorce

I was recently a guest on Divorce Talk Radio, is a weekly live radio show hosted by Stephanie Watson the Divorce Editor on BellaOnline.com. I talked about protecting yourself during divorce by making sure you have a properly prepared estate plan.  This includes making sure you have a valid health care proxy so that the person of your choice, and not your soon-to-be-ex, is making decisions about your health care if you are unable, and having a durable power of attorney that allows someone you select to handle your property if you become unable.  The episode also covers the legal documents and designations that you can't change once your divorce has been filed, and the steps you should take after divorce to make sure your wishes are honored when it comes to your property, especially any property you might be leaving to minor children. 

Click here to listen to the episode.

What to Do When You Can't Decide

I sometimes have clients who have trouble making decisions - they can't decide who should be guardian of their children, they can't decide who to appoint as agent under a power of attorney, and they can't decide exactly how to distribute their property when they pass away.  And so they do nothing.  Maybe they call me every so often to talk about it, or I call them to check in and see how they are coming, but still months or even years go by and they do nothing because they can't decide.

But, as I tell them, by not deciding you are still deciding. 

By not choosing a guardian of your children you are deciding that a judge is really the best person to decide what will happen to your children, and any money that they inherit, if you pass away.  (If you can't think of anyone to name as guardian, go read this great post by Oregon Attorney Candice Aiston.)  Which family members would step up to take that role? Is it someone you want? Then name them. Is it someone you don't want? Then name someone else. 

By not choosing someone to handle your finances in the event of your incapacity, you are deciding that a judge knows the best person for the job.  You are also deciding that your money is better spent on court proceedings than on your care, and you are deciding that in the event of a crisis your family will be at the attorneys office and in court, and not at your bedside.

By not choosing who you want to have your property, you are choosing to have it distributed according to state law which means that it could end up in the hands of an 18 year old kid, someone with a creditor problem or in the middle of a divorce, or it could seriously jeopardize the benefits being received by someone who has special needs or is in a nursing home. 

The last thing I want to do is have to have a conversation with a family in which I need to explain that yes, I had met with their mother a few times, but no, she had never been able to make a decision and I'm sorry but we need to go to court to get a guardian and a conservator appointed so that someone can pay the bills and sell the house and consent to the medical procedures.

If you've been putting it off because you think you can't make the perfect decision, just make a good decision and get your plan in place.  It can always be changed while you are alive and competent, but it can't be created out of thin air when you are no longer around. 

Rethinking Your Estate Plan

I've posted before about how to keep your estate plan up-to-date even though your finances may be changing. And I was quoted in a recent Money Magazine article on the same subject.

The article addresses some ways to deal with changing finances and talks about things to think about when deciding on how to distribute your property.   They start with a scenario of your son being a struggling actor, and your daughter being a successful software developer:

You don't know what the future holds. Your single son marries and has five kids; your techie daughter loses her job and becomes a teacher. Unless you're willing to constantly tinker with your will - and explain every change to your kids - parceling out different amounts can back-fire big time.

A better solution: Bequeath your children an equal amount upon your death, but make gifts as needed to them while you are alive if you can afford it. Want to help your daughter with your grandchildren's education? Contribute to their 529 college savings plans. (The IRS allows you to make the equivalent of five years' worth of gifts to a 529 all at once - that's $65,000 a child, or $130,000 if given by a couple.) The struggling actor is trying to buy a home? Help him with the down payment.

There are exceptions to the "equal" rule, however. A disabled child who is dependent on you will probably require a bigger share of your assets, which you can provide through a so-called special-needs trust. A child who works in the family business may deserve a larger share of it than one who doesn't. No matter what you decide, explain your thinking so that your kids won't have wrenching and potentially costly disputes later...

The article also talks about ways to include charitable giving in your plan, as well as when to revisit your plan.  I think the main thing is to make sure you let you attorney know all of your concerns upfront, and to answer their questions honestly.  Also, let your attorney know when a change occurs in the family, or if your wishes change.  Lastly, talking to your family about your plan and your decisions can do wonders to keep the peace after you've passed. 

If you are ready to get started on a new plan, or want to update an old one, call my office for an appointment at 781-749-2284. 

Passing On More Than Just Things - Leaving a Legacy Letter

When people think about their estate plan or their will, they commonly think about dividing up their things among the people who will survive them. How many people stop to consider what else they want to leave behind - memories, lessons, values and other priceless intangibles. 

Some people will write a legacy letter to their family members to be kept with the will, and read at their death.  Many clients find it helpful to write these letters at different stages of life - a birth, a marriage, a divorce, a health change - and find that writing these letters helps with the transitions. 

Legacy letters, also called ethical wills, can be kept with your attorney or other trusted adviser, and will be cherished by your family long after any inheritance is spent. 

For help in writing an ethical will, there are several books such as The Wealth of Your Life; A Step-by-Step Guide for Creating Your Ethical Will

See also, article in Investment News, Passing on More Than Just Money.

Finding the Right Living Situation for Your Aging Parents - It's Not All or Nothing

Today's post is written by Generational Coach Barbara Friesner of AgeWise Living.  Barbara works with the family members of the aging person, not the elder themselves.  I typically work with the family and the elder, but I consider the elder to be my client. 

Barbara's post outlines the many different living situations open to a person who is growing older and needing more assistance. As you can see, the choices aren't just "home or nursing home."  An elder law attorney can assist in the case of an elder in transition by making sure their important documents like health care proxies, wills, durable powers of attorney and other documents are up to date and still reflect a person's wishes.  An attorney can also assist with referrals to home care agencies and geriatric care managers, and help the family determine how the care will be paid for.
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As a Generational Coach, I work with family members (only the family – never the senior). I help them know what to do and how to communicate effectively so their aging loved one will actually do what’s in their best interest. I help them with all sorts of issues but one that comes up frequently is should Mom and/or Dad live at home (which may be too much for them or perhaps is no longer safe) or move into a nursing home. Why those two options – all or nothing – home or a nursing home? Because often those are the only 2 options they know.

And unfortunately, most of the time, the family calls me after they’ve mentioned the nursing home option to their aging loved one and now their aging loved one won’t talk to them any more!

Before bring up the topic with your aging loved one, here are some other housing options to consider:

~ Stay at home but with help such as having someone (such as a handy-person or a neighborhood kid) help them maintain the house (inside and/or out) and/or help with the cleaning

~ Stay at home with an in-home aide
Depending on the level of care needed (as in – whether they need medical care or not), an in-home aide can help with such things as:
•    Conversation and companionship
•    Meal preparation (and feeding, if necessary)
•    Light housekeeping
•    Errand services including grocery shopping
•    Medication reminders
•    Incidental transportation
•    Laundry and linen washing
•    Recreational activities and crafts
•    Mobility
•    Transferring and positioning
•    Hygiene such as bathing, toileting, incontinence care, grooming and dressing guidance, etc.

~ Move into a smaller, more manageable home.

This may include:

Senior Apartment: Age-restricted multiunit housing for older adults who are able to care for themselves. Usually no additional services such as meals or transportation are provided.

Independent Living: a residential living setting for senior adults that may or may not provide hospitality or supportive services. Under this living arrangement, the senior is independent and requires minimal or no extra assistance. Generally referred to as elderly housing in the government-subsidized environment, independent living also includes rental assisted or market rate apartments or cottages where residents usually have complete choice in whether to participate in a facility's services or programs.

~ A Continuing Care Retirement Community (CCRC)
A continuing care retirement community (CCRC) offers several levels of assistance, including independent living, assisted living and nursing home care. It is different from other housing and care facilities for seniors because it usually provides a written agreement or long-term contract between the resident (frequently lasting the term of the resident's lifetime) and the community which offers a continuum of housing, services and health care system, commonly all on one campus or site.

~ An Assisted Living community
An Assisted Living community provides a combination of housing, personalized supportive services and health care designed to meet the needs – both scheduled and unscheduled – of those who need help with activities of daily living.

Services provided in Assisted Living residences usually include:

•    Three meals a day served in a common dining area
•    Housekeeping and personal laundry services
•    Transportation
•    Social and recreational activities including health promotion and exercise programs
•    Access to health and medical services
•    Medication management
•    Assistance with eating, bathing, dressing, toileting and walking is also usually available

~ If there is a medical need – Nursing Home:
A nursing home provides 24-hour skilled care for the more acute patients (one step below hospital acute care). Patients generally rely on assistance for most or all daily living activities (such as bathing, dressing and toileting). Regular medical supervision and rehabilitation therapy are mandated to be available, and nursing homes are eligible to participate in the Medicaid program. These facilities are State Licensed and pre-admission screening is usually required.

As you can see, there are a broad range of options between ‘all or nothing’. And there are other options and variations within these options. And remember, if you are concerned that your elderly parent needs help now or may shortly and you don't know how to proceed, I urge you not to wait for a crisis to develop. Please call me toll-free (877) AGE-WISE or email me at Barbara@AgeWiseLiving.com for a complimentary "get acquainted" conversation. I'm here to help!
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If you or your parent is in transition and wondering what your options are, are wondering how you'll pay for the different living situations, or you want to make sure your estate documents are up to date and still reflect your wishes, please call my office to make an appointment at 781-749-2284. 

Beware of "Grandparent Scams"

Authorities are warning of new scams targeted at the elderly.  The latest attempt to defraud seniors is a phone call from someone pretending to be a grandchild who is in trouble.

“Don’t tell anyone, but I need help. Send money.” 

The plea to keep things quiet from other family members can make the scam successful, since the grandparent wants to protect their grandchild and help them out of a bind.  They will request that you wire money somewhere because they have been arrested, been in an accident or are traveling and have been robbed. 

Watch for the red flags:

• Callers requesting money
• Callers claiming to be out of the country
• Callers insisting you don’t tell anyone else
• Callers with unfamiliar voices
• Callers who are being vague and get personal details wrong
• Callers who just say “It’s me” or “It’s your favorite grandchild” and don’t give their name. 

If you receive a call like this:

• Don't fill in the missing information. If they say "It's me" ask "Who?"
• Tell the person that you will call them back. If you don't have a grandchild's number, call a trusted family member for the information.
• Never give account numbers over the phone. 
• Be very suspicious of calls requesting money to be wired somewhere. 

Always ask for verification of the identity of the caller. If it is really your relative they won’t mind. And if it’s not, you can get off the call quickly and alert the police.

If you think you or your loved one may have been a victim:

• Contact your local police non-emergency number to report the scam.
• Contact your bank if you wired any money.
• Don't be embarrassed to tell a family member about what happened. 

It's natural to want to help out a family member, but a real family member won't mind that you are trying to keep yourself safe, and the fake one will be out of luck.  

Mistakes to Avoid When Choosing Guardians for Your Children - Cohasset Library May 28th.

Please note: this event has already taken place. If you would like Leanna to come speak at your group, please email her at Leanna@HamillLawOffice.com

Come and learn about the 6 mistakes parents make when choosing a guardian for their children, and how to avoid them. Find out about the 5 estate planning documents every parent needs, no matter the size of their estate. Get your questions answered about how to make sure that you, your children, and your property will be protected if something happens.

Held in Cohasset at the Pratt Memorial Library, 35 Ripley Road Cohasset MA. Thursday May 28, 2009 from 6 - 7:30 p.m.  Free. 

Space is limited. Please RSVP by calling  781-749-2284, or emailing Leanna@HamillLawOffice.com

Can't make it that night? Get at least 6 friends together and have your own free personalized session. 

Elder Mediation - Another Resource to Help Families with Issues of Aging

Even in close families, issues can come up that need an outside party to help deal with them.  Caring for an aging parent while dealing with siblings (and their spouses) can make a difficult task even harder.  Inheriting property from parents that you now own jointly with several siblings can seem like an unwelcome gift when no one can agree on what to do with it.  Feeling like you were left out of  a Will unfairly can make the death of a parent seem that much more devastating. 

Enter the Mediator. More and more families are turning to Mediation to help sort out issues and preserve relationships while making sure everyone is heard.   A recent story on National Pubic Radio has highlighted the usefulness of mediation in families who are dealing with issues of aging.  As the story points out: 

It's not uncommon to hear one sibling bitterly tell another: "Mom liked you best." Larsen says long-established family roles can play out the moment siblings walk into a mediation. "When they come in a room and sit at a table, they'll very often take the position they took at the dinner table 30 or 40 years ago without even realizing it," he says.

Good mediators make sure that the older person's voice is heard. Bob Rhudy, an attorney and mediator in Baltimore, says that's important even when someone has Alzheimer's or dementia and might have trouble following the conversation.

"Even when there may be some fairly substantial limitations on capacity, people have the ability to say what family member that they are comfortable with, who they care for, respect, trust, where they like to live," says Rhudy. "They may not have the capability to make substantial legal or financial decisions, but they certainly have the ability to express opinions and wishes and desires.

Mediators work with families on issues like:

• helping a parent decide how to leave their property to their children,
• helping children who jointly own property from their parents deal with being co-owners,
• helping families decide how to manage the care-giving of a parent,
• helping families who are arguing over a Will or Trust resolve their issues.

Sometimes people turn to litigation as a first resort when in a dispute about property or a Will, but I often encourage people to explore mediation first. It is private (no Court room drama here), much less costly, confidential (no public record) and voluntary.  And most importantly, it can help keep the family relationship as the focus, rather than as the first thing to give up.         

Your Help Needed to Support New Legislation to Maintain Finanical Security for Seniors

I am a member of the Public Policy Committee of the Massachusetts Chapter of The National Academy of  Elder Law Attorneys.   Below is some information about recent bills that have been filed by our chapter to help seniors and their families. You can click on the name of the person sponsoring the bill to be brought to a page with their contact information, or call your local senator or representative to ask them to support these bills.

As part of its advocacy for quality of life for seniors, the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) is filing four bills for the 2009-2010 legislative session that affect the state's elder population. The bills focus on improving the ability of elders to remain financially independent and in their home while dealing with the cost of long-term care.

"Our efforts at the State House make a tremendous difference for elders," states Suzanne Sayward, president of MassNAELA. "In this time of financial crisis, it is critical we do all we can to allow elders to remain in their homes with sufficient income and resources to provide for their needs. We are very pleased that so many Representatives and Senators have signed onto our legislation supporting elders' financial security."

The four bills recently filed by MassNAELA are as follows:

"An Act to Help Families Care for Frail Elders," sponsored by Senator Mark Montigny and Representative Kay Khan, would allow elders to compensate family members providing in-home care-giving services without violating MassHealth eligibility rules. The bill would permit family members to leave employment to care for loved ones, thus preventing nursing home placement and saving costs to the MassHealth program.

"An Act to Provide Financial Security for Spouses of Nursing Home Residents," filed by Senator Jamie Eldridge and Representative Alice Peisch, would help community spouses of nursing home residents retain their Individual Retirement Accounts (IRA's) as non-countable assets when the resident applies for MassHealth. Allowing spouses to keep their retirement assets provides them with additional income and resources while they are dealing with the substantial cost of nursing home care.

"An Act Relative to Nursing Facility and Long Term Care Claims," sponsored by Senator Robert O'Leary and Representative Chris Fallon, concerns MassHealth's exemption of the estates of individuals with minimum long-term care insurance coverage from its estate recovery claims. This bill would allow the use of such coverage for community-based care before entering a nursing home without forfeiting the exemption from MassHealth estate recovery. Allowing seniors to use their long term care insurance for community-based care will enable many more elders to remain in their homes rather than forcing them into institutional care.

"An Act to Correct the Income Calculation for Spouses of Nursing Home Residents," filed by Senator Gale Candaras and Representative John Fernandes, would correct the unrealistically high interest rate that is used by MassHealth to deem investment income to the community spouse of a nursing home resident. Most seniors invest in shorter-term investment products such as money market accounts, which have relatively low interest rates. Use of a money market interest rate to deem marital income to the community spouse would provide additional assets for their support.

MassNAELA's most recent legislative success, Chapter 125 of the Acts of 2008, orders financial institutions to not charge fees for providing up to 5 years of retroactive bank records for a MassHealth applicant or recipient who has a written request signed by a MassHealth employee or agent.

Anyone with questions regarding these bills or interest in expressing their support may contact their local state representative or state senator.

Good Gifts Gone Bad - The Hidden Dangers of Giving Property to Your Children

I often have clients (or client's children) who ask me - "can't I just give my property to my child?" Or who say "My mom wants us to inherit her house, isn't the easiest way to just have her sign a life estate deed?" Sometimes it's "I'm allowed to give away $10,000.00 per year, right?" or  "I put my bank account in my son's name since he is going to be paying my bills for me from now on, that's ok, right?"  In many cases, it's not ok.

One of the things you need to be aware of when you are transferring your property is that there may be ramifications beyond just making a nice gift or helping out a child:

• If you give property to a child, it could be at risk if that child is sued or files for bankruptcy.


• If you put money in your child's name that they plan to hold on to for your future use, this could count against them if they need to apply for financial aid for their children or for themselves. 


• If you pass the remainder interest in your home to a child, you will not be entitled to the full proceeds from the sale if the home is sold during your lifetime.  You will only be entitled to the share of the proceeds that are allocated to the life estate, and your children will be entitled to the proceeds that are based on the value of the remainder interest.  This could significantly reduce the amount of money you thought you would receive upon the sale of your home. 


• If you pass the remainder interest in your home to a child, and that child later needs to file bankruptcy they could be forced to sell their share in the family home to satisfy their debts. 


• If you give property to your child, either cash or real estate, that property could be at risk if your child goes through a divorce.


• If you give your property to a child, you may end up needing it for your care and be unable to access it when you need it.


• If you give real estate to a child, there may be negative tax consequences for them when the property is sold.


• If you give the remainder interest in your real estate to more than one child, and they later can't agree on what to do with the property, one of them may take legal action against the other to force the sale of the home. 
  
  
• If you give money or property away and later need to apply for public benefits such as MassHealth, you may be ineligible due to your gifting. 

What seems like a relatively simple transaction can be riddled with "traps for the unwary" for both the giver and the recipient.  There are many safe and appropriate ways to make transfers of property to your children while insuring that you, your children and your property are protected.  It is vital that both parties seek legal advice so you can go into the transaction being fully aware of the consequences of the gifts, and the best way to structure the transaction.

How to Communicate Your Health Care Wishes

As part of the work I do with my clients, one of the things we always talk about at our first meeting is whether they have signed a health care proxy.  A health care proxy is a legal document which appoints another person to make health care decisions for you in the event you are unable.  The document only takes effect when your doctor has declared that you are unable to make medical decisions on your own behalf. Only one person at a time can be appointed as your health care agent, but you may list one or more alternate agents.

Once you have signed your health care proxy and given a copy to your health care agent, your doctor, and perhaps put a copy in your glove compartment, your work is not done.  It is very important to let your health care agent know what your wishes are so that they know what decisions you would like made for you when you are unable to communicate those wishes. 

A person's statement of their wishes regarding health care is often called a Living Will, or life support statement.  While these documents are not legally binding in Massachusetts (only the Health Care Proxy is), I recommend to my clients that they think about signing a Living Will.  There are a few different ways to communicate your health care wishes:

• You can write a simple handwritten or typed note and sign it and keep it with your health care proxy,
• You can complete a workbook such as Five Wishes (the document I give to my clients) or Your Way, 
• You can complete and sign a document handed out by your church or religious organization which lays out the requirements for end of life care, or
• You can even just have a conversation with your health care agent about what you might want in different situations. 

The important thing is that your health care agent knows what your beliefs and wishes are surrounding medical care and end of life care.  And if you know someone has appointed you as their health care agent, then you should talk to them about their wishes.

If you haven't done any planning, you may wish to download one of the living will documents linked above to get you started, and then get in touch with an attorney to make sure that your wishes will be honored. 

Siblings and Caregiving - Making it Work

We are lucky to have another guest post by Barbara Friesner of AgeWise Living, a generational coach who works with families around issues of aging, care-giving and helping siblings maintain or improve their relationships while one or more of them is caring for an aging  parent. Barbara has generously offered my readers a 10% discount on any of her products for care-givers.  Call her at 877- AGEWISE (243-9473) to receive the discount. 
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Eldercare is hard enough without adding sibling issues to the mix but too often they’re very hard to avoid when you’re talking about Mom and Dad.

As a Generational Coach, about half the time I work with just one adult child.  Sometimes, however, that one person has siblings that either are not helping or are actually sabotaging their efforts.

For example, the caregiver lives near Mom and is doing all the work.  They’ve been doing the day-to-day care-giving, getting groceries, cleaning the house, doing chores, and running errands and it’s getting to be too much for them because Mom needs more care than they can provide.  So s/he is working hard to get Mom to move into an assisted living community – and making some progress!!   And then a sibling calls Mom from across the country and tells her “No – it’s ok, you don’t have to move!!”

Sometimes a sibling will do that because they honestly don’t know how bad it’s gotten with Mom.  Other times they do that because they know Mom doesn’t want to move and they want to be the ‘favorite’ child – so they tell Mom what she wants to hear! 

Sometimes it is a sincere difference of opinion on what was best for their aging loved one.  For example, a 90-year old mother eats a lot of sweets and one daughter thinks she shouldn’t eat any sweets because they’re not good for her.  The other daughter says that Mom doesn’t have a health issue – she just likes sweets and if she wants to eat sweets – let her! 

Sometimes it’s real controversy – for example, one sibling wanting to do what’s best for their parent regardless of the cost while the other sibling wants to spend as little as possible so there will be more money for their inheritance.

Some children say it would be better to be an only child, but being an only child – or the only caregiver  – can also be overwhelming, frightening, draining and very lonely.

As hard as it may be to believe, getting help from sibs can make it easier.  Siblings allow shared decision making.  Ideally they will share responsibility.  Your parent may take information/suggestions from a sibling better than they will from you.  In fact, even those who seem “practical” or even indifferent may see things less emotionally than the stressed-out caregiver or more emotional siblings.  And a sister/brother has been there – they know all the players from the inside – so they bring a perspective not even your closest friends can bring.

But perhaps the most important reason to work with your siblings is the relationship you will after your parents are gone.  Right now may think you wouldn’t care if you ever talk with them again but handling it in a positive way now allows you to leave the door open for future relationships – perhaps an even stronger one!

So what do you do? 

Surviving Divorce, The Road Ahead. A Two-Night Workshop.

PLEASE NOTE: THIS EVENT HAS ALREADY TAKEN PLACE.

Surviving Divorce…The Road Ahead Workshop

Legal, Financial and Credit/Debt advice for people who are divorced, divorcing or contemplating divorce

March 3 and March 10, 2009, 6-8:30pm
at
Braintree Public Library
Braintree, MA
Click on the link below for details

The Dangers of Do It Yourself, A Cautionary Tale

A colleague recently had a new client come to see them. The man's father had passed away, and the son had found the Will...the Will that his father had purchased online and signed, thinking his wishes would then be honored. Sadly, they won't be.

The form Will that the father had filled out had spaces for specific bequests - specific items that he wanted to go to certain people.  So the father had filled those out.  Then he signed the Will in front of two witness and had it notarized. 

As the years passed, some of the things the father had left to people went out of his estate - cars were sold, bank accounts were closed and new ones opened - and some of the people he was leaving things to had died.  And no where in his Will were these things taken into account.  There were no contingent beneficiaries, people who would inherit if the first beneficiary died before the father.  The residuary clause - the catch-all clause that says "anything else I may own at the time of my death goes to the following people:" - wasn't even on the form. 

When a Will is properly drafted with an attorney, the attorney will ask questions of the person making the Will - "You want to leave that account to Sharon, ok, do you want to leave all bank accounts to Sharon? What if you close that account and open another, what would you like to have happen? What if Sharon passes away before you? Do you want her share to go to her children or to her siblings? Are her children minors? Do any of them have special needs? What about the grandson you mentioned who's having problems with drinking? - and so on and so on. 

That is the reason to have an attorney assist you with this process. We know the questions to ask, and we know what to do with the answers.  We know how to read the hesitation in your voice when you are trying to decide who to choose as guardian or executor, and how to tease out more information so that you can make the best decision for your family.  And we are here when your life changes and you or your family need some guidance on what to do next.  We are here when the Power of Attorney you signed has to be used by your children and the bank is giving them a hard time.  We are here when your sister has to use your Health Care Proxy and she can't find her copy and she doesn't have a key to your apartment because she never thought anything like this would actually happen. 

So, what will happen to that father's estate? The things that are still in the estate and are mentioned in the Will will pass through the Will. The things that are left to someone who has predeceased would have passed through the residuary clause to someone else of the father's choosing but will now pass by Massachusetts Law, through the Intestacy Statue, which differs greatly from the father's wishes.  Those things which were not mentioned in the Will at all, the new bank accounts the father had opened, those will pass through the Intestacy Statute as well.  For some things, the Court's guidance may need to be sought, for others a guardian needs to be appointed for a minor child who is inheriting "unintentionally", all of which involve more time and more money, which the father was trying to save by doing it himself. 

There are ways to keep costs under control when preparing your estate plan. Buying documents online just doesn't happen to be one of them.  Working with an attorney ensures not only that your wishes will be honored, but also that your estate can be administered in the most timely and cost effective manner after you pass away. I always tell my clients "when your affairs are in order, I become the last person your family calls in the event of a crisis and instead of the first," which is how it should be. 

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Is It Time to Be Concerned? Talking to Your Aging Parents

I am thrilled to have today's post written by Barbara Friesner, author of The Ultimate Caregiver's Survival Guide.  Barbara is an expert on issues affecting Seniors and their families.  She has been featured on NY1 TV's "Focus on Seniors", "Coping With Caregiving" and on radio shows across the country.

As care manager, first for her grandmother and now her mother (with dementia), Barbara learned first hand how overwhelming, stressful, and time consuming elder care can be. As a result, Barbara started AgeWiseLiving to help others navigate through this challenging time, and avoid the emotional and frustrating task of finding the answers themselves and trial-and-error implementation.

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The holidays may be over, but for many caregivers, the concern lingers on.  I’m getting a lot of calls from people who saw their parents for the first time in months and were shocked at how they have aged.  Therefore, in addition to questions to ask your parents, there are also questions to ask yourself.

Overall:
➢    Is your loved one clean and well groomed?
➢    Is s/he properly dressed with clean clothes?
➢    Has s/he gained or lost significant weight?
➢    Is s/he walking well (eg: good balance and posture)?
➢    Do you notice changes to his/her hearing, sight or speech.
➢    Is s/he is more timid, apprehensive or withdrawn?
➢    Do you notice a change in short term memory? Does s/he seem confused and/or lose her/his train of thought easily and/or often? Does s/he ask the same questions and/or tell the same stories over and over?

At their home:
➢    Has the neighborhood changed? Does it look safe?
➢    Is the exterior of the house maintained?
➢    Is the interior of the house neat, clean, and well maintained?
➢    Is the refrigerator stocked with fresh (or at least edible) food?
➢    Do you notice excessive clutter and things like piles of unopened mail, lots of sweepstakes offers, etc?
➢    If the home has stairs, can s/he navigate the stairs safely or does it look like s/he is now living on the ground floor because of an inability to navigate the stairs?

What you see can run the gamut from "everything is fine" to "something is definitely wrong". If you see something critical or alarming, obviously you have to take action immediately. If you don't see anything out of the ordinary, then take the opportunity to start talking.  The more you talk now, the easier it will be to talk about difficult topics later. 

Some do’s and don’t’s for bringing up the conversation:
➢    Do know, understand, and respect the importance of their emotions.  They’re going through a difficult, emotional time.
➢    Do know, understand, and respect the importance of their generational experiences.  It’s human nature to think that everyone – especially our parents – think the way we do but they don’t.  Understanding where they’re coming from is critical to your success.
➢    Do bring up difficult issues gradually – starting with the most urgent concerns.  Don’t try to do all at once – you can’t cover everything in one conversation.
➢    Do find a quiet time – perhaps over a cup of tea – and allow time to stop and reintroduce later.
➢    Don’t think in terms of “parenting the parent”.  The best you can hope for is a collaboration
➢    Do look for the underlying cause rather than addressing the symptoms.  For example, your father has a couple of fender-benders so you want to take away the car.  But before you do, ask yourself if the problem is with his driving or could it be something else such as a problem with his eyes? 
➢    Do help them see why change is in their best interest (You can make anyone want to change).

For more information about talking with your aging loved one, please check out Barbara's website, www.AgeWiseLiving.com.

Barbara E. Friesner 
Author of  “The Ultimate Caregiver’s Survival Guide”
www.AgeWiseLiving.com

More Questions to Ask Your Parents

I posted earlier about questions to ask your parents, and I'm noticing that more and more people are asking me that.  You can review the categories on the right hand side of this site to get an idea of the things people should have in place, and below are some more questions that can get you started:

• Have you signed a Health Care Proxy so that someone will be able to make health care decisions for you if you are unable?
  
• Have you discussed your wishes for end of life care with that person? Have you given a copy of the Health Care Proxy to them and to your doctor?
  
• Have you signed a Durable Power of Attorney so that someone can manage your finances and property for you if you are unable?  Does that person know where to find your important papers?
  
• Do you have a list somewhere of all your accounts, property, passwords, insurance policies, real estate and other important information? 
  
• Have you updated your Will recently to make sure it still reflects your wishes? Are the people you appointed to serve as executor still available?
  
• Have you noticed any changes in Mom/Dad that worry you?

If your parents, or you, are ready to get your plans in place and start 2009 off on the right foot, call my office for an appointment. 

Local Tax Credit For Seniors

The Boston Globe has a recent article about the "circuit breaker" tax credit for seniors. The article points out that many people over 65 are not taking advantage of tax credit, which can be up to $930. 

Homeowners qualify for 2008 if their home was assessed at up to $793,000 - nearly double the 2008 state average of $403,687 - and if their property taxes, plus 50 percent of water and sewer bills, exceeded 10 percent of their income. The credit equals that excess amount, up to $930.

Renters can get the refund if 25 percent of their annual rent - estimated to be the amount covering a landlord's property taxes - exceeds 10 percent of annual income. Renters in subsidized apartments are ineligible.

Residents 65 and older may apply for 2008 if they earned up to $49,000 individually (the limit is $62,000 for heads of households, and $74,000 for couples filing jointly), meaning about 70 percent of the state's 800,000-plus seniors would at least meet the income criteria, Henze Russell said.

Check with your local Council on Aging for more information or help filing for the credit. 

New Caregiving Website with Videos

Videocaregiving.org is a new visual education center for family caregivers. 

The videos are designed to be short, simple and direct, and are able to be accessed easily by the user at any hour of the day or night. Many of the videos follow a documentary format that uses real people and follows real situations.

When you hear somebody with early stage Alzheimer's Disease describe their embarrassment and humiliation over being confused and not able to find their way home, you know that you are seeing a story told from the heart-a story that you can identify with and that may help you to better understand a situation that you, yourself, might be dealing with.

The video material is able to turn words into pictures and scenes that can illustrate appropriate care-giving techniques and, in a sense, assure the user that he or she is not alone in this often lonely, difficult and stressful situation.

The videos are short, and very informative. They have one on helping to breakdown tasks so that a person with Alzheimer's can be more involved with their daily activities.  Other videos include nursing home discussions and information about driving and how to recognize when it is time to stop.

Thanks t0 Sue Scheible over at A Good Age for bringing this site to my attention. 

More Men Taking Over the Caregiving Role

The image of a caregiver for an aging parent or relative is usually a woman in her 40's or 50's who is raising her own children, probably working outside the home, and then trying to care for her aging loved one at the same time.  But according to a recent article in the New York Times, more men are serving as caregivers than ever before.

The Alzheimer’s Association and the National Alliance for Care-giving estimate that men make up nearly 40 percent of family care providers now, up from 19 percent in a 1996 study by the Alzheimer’s Association. About 17 million men are caring for an adult.

Often they are overshadowed by their female counterparts and faced with employers, friends, support organizations and sometimes even parents who view care-giving as an essentially female role. Male caregivers are more likely to say they feel unprepared for the role and become socially isolated, and less likely to ask for help.

Whether you are a male or female caregiver, there are some things you should be aware of that will make your role easier:

• don't be afraid to ask for help and seek support. Local senior centers and hospitals often have caregiver support groups.
  
• take advantage of respite care - either by having another family member or paid caregiver relieve you for a few hours, or check out the respite care stays available at your local assisted living facility.
  
• make sure the person you are caring for has signed a Health Care Proxy, HIPAA medical release and Durable Power of Attorney that will allow you to legally perform the work you need to - making health care decisions for them, calling doctors and insurance companies to straighten things out, or helping them with their banking and other financial issues. 
  
  Also make sure that an alternate has been named in the documents so that if something happens to you, someone else will have the authority to take over.  If the documents are several years old, were signed in a different state, or if you just want to make sure everything is in order, contact an attorney to have her review the documents and advise you on any needed changes.