Massachusetts Estate Planning and Elder Law

New Rules for Reverse Mortgage Counselors

The New York Times has a recent article on the new rules for reverse mortgage counselors. 

Under the new rules, counselors are required to pass an exam that was used in recent years by the AARP Foundation to qualify its reverse-mortgage counselors, and they must take part in training every two years. Counselors will also have to follow a set of protocols to help determine whether a reverse mortgage will help a borrower.

Counselors will focus more attention on assessing borrowers’ household budgets and carefully addressing whether a reverse mortgage will help achieve their goals. Sometimes, Ms. Burns said, counselors will suggest social service options like Meals on Wheels to alleviate some of their financial difficulties.

Counselors will also be required to determine whether the consumer actually understands the information. If they cannot make that determination with confidence, they must withhold the counseling certificate, which is needed before a loan can be approved. The counselor can recommend that a borrower bring along a family member or financial counselor to a return visit.

The article points out that telephone interviews are still available, which could cause some problems with determining whether the person on the telephone is actually the person trying to obtain the reverse mortgage. 

Whether or not a reverse mortgage is right for a particular person depends a lot on their specific circumstances. I've had some clients who obtained one and then regretted it, and others who were glad they did.  Having more stringent standards for the counseling which is required before obtaining one will hopefully lead to more people making the right decision for their situation. 

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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.

New Guardianship & Conservatorship Forms

The new forms for petitioning for guardianship and conservatorship can be found on the Probate Court website, by clicking here. There are instructions for the forms that can be helpful for the physicians who may not be used to filling out the new, more extensive medical certificates, and for folks who are representing themselves in petitioning for a guardianship or conservatorship.

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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.

New Guardianship Procedures - The Medical Certificate

The procedures for obtaining guardianship or conservatorship (see below for definitions) over a person who has become unable to handle their own affairs has recently changed in Massachusetts with the adoption of the Uniform Probate Code.  I will be doing some posts over the next couple of weeks to outline some of those changes.  One of the biggest changes has been the new medical certificate.  You can download of copy of the certificate here: Download MedicalCertificate  The certificate must be filled out by a physician who has examined the proposed incapacitated person in order to demonstrate to the Court the need for the guardianship and to outline what the person can still do on their own.

The changes in the procedure stress the importance of allowing a person under a guardianship or conservatorship to maintain the maximum amount of personal determination as possible.  As you'll see on the certificate, the doctor needs to state what types of things the person can still do on their own - perhaps they can perform activities of daily living and make decisions about their leisure activities but need someone to make medical decisions on their behalf.  Likewise, a person under a conservatorship may be able to handle small amounts of money, but may need a conservator to handle the bulk of their assets and manage their real estate. 

By requiring an extensive medical certificate, the Courts are trying to ensure that people's civil rights remain protected, even when another person is given authority to make decisions on their behalf. 

The reason I stress the importance of planning ahead with Health Care Proxies, Durable Powers of Attorney and Trusts is because with those documents you can avoid the need for a guardianship or conservatorship even if you become incapacitated.  Court proceedings should always be the last resort, as they are public, costly, time consuming, stressful on the family, and put a judge in charge of making the decision about who should handle your affairs. 

Guardianship:  A guardianship is a legal relationship created when a person or institution is assigned by the court to take care of an adult who has been deemed incapacitated by reason of mental illness or mental retardation. A guardian has authority over the person's health care decisions, living situation and related issues. 

Conservatorship: A guardianship is a legal relationship created when a person or institution is assigned by the court to take care of the property and finances of an adult who has been deemed incapacitated by reason of mental illness or mental retardation. A conservator has authority over the person's financial matters. 

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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.

Site Nominated for the ABA Top 100 Law Blog List

My blog has been nominated to the American Bar Association Top 100 Blog List.  This is a great honor, and makes me proud because it means that I'm continuing to provide the value to my readers that I strive for.  Voting to select the Top 10 is now taking place.  I'm donating a dollar for every vote to the Hingham Interfaith Food Pantry, with an additional $50.00 donated if I'm selected to the Top 10. Please vote for my blog: 

Register here: http://www.abajournal.com/register

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Thank you so much for taking a couple of minutes to register and vote! I really appreciate it and will strive to continue to bring you the information you need on the legal issues affecting families and the elderly in Massachusetts and the nation.