Massachusetts Estate Planning and Elder Law

Traveling Without The Kids This Summer?

Are you taking a vacation without your children this summer, even a weekend away? Make sure you have the proper documents in place so that whoever is caring for your children has the authority to obtain medical care for them in an emergency. Also, make sure that you leave detailed instructions about their medical history, allergies, and medications and how to reach their current doctor. 

If your over-18 children will be traveling without you, make sure they have a Health Care Proxy signed so someone can make medical decisions for them if they are unable.  While they may still be your baby, if they are over 18 your right to make decisions for them, or even get an update on their medical condition, will be limited without the proper authorizations in place. 

The more prepared you are before you leave, the less you have to worry about on your trip. Just don't forget the sunscreen! 

Need the Perfect Wedding Gift?

Tired of the same old items on a wedding gift registry? An article in the Boston Globe points out that some couples are looking to register for more useful things - like legal services.  It makes sense; once you are married you'll need a Will, perhaps to update your health care proxy and power of attorney to appoint your new spouse, maybe you need assistance with getting your names changed, or you want to put the house in both names.

Just think of the possibilities - for an engagement party the couple could register for gift certificates to their respective attorneys to have a prenuptial agreement drawn up, then after the wedding they need to begin their estate plan, and once the babies start to arrive the estate plan needs to be updated with trusts and guardians. 

So if you have lots of weddings to go to this summer and can't stand the thought of buying another crystal vase or pasta strainer, maybe the couple would welcome a contribution towards the cost of their estate plan.

The Importance of Naming an Alternate Beneficiary in Your Will

I have posted before about the importance of naming an alternate beneficiary on your life insurance policies, so that the proceeds can be distributed to someone else in the event that the primary beneficiary predeceases you.  However, it is likewise important to name alternate beneficiaries in your Will. 

For example, if you have one child, and you leave everything to that one child, what if he or she predeceases you? Where do you want the funds to go then?  Did you mean for them to go to your grandchildren?  Or you have multiple children and one predeceases you.  Did you want their share to go to their siblings or their children?   Or, perhaps you wanted the funds to to go to your daughter-in-law who took such good care of you.  Without specifying so, the money would not go to her, but rather to your next closest relative who may be someone you have never met, or do not even like. Or maybe you would like your college, or a certain charity to be the contingent beneficiary.  Maybe the person who would inherit the funds by operation of law is a spendthrift, or addict, or has special needs and the money would be better protected in a Trust.

Unfortunately, you will not be around to explain what you wanted, and the statutes which dictate how the funds will pass without your direction will not necessarily match your wishes.  When thinking about your Will, you must always think "What if this person passed away before me, where would I want their share to go?"  Then talk about it with your attorney, who will help you make sure that all contingencies are covered. 

Want to Give, But Not Sure Which Charity to Choose?

If you are wanting to make a charitable donation, but aren't sure about which charity to choose, or you want to check on a charity to see what they spend on administrative costs and overhead - try a website like Charity Navigator. 

In addition to rating charities, it also contains information about What to Do When A Charity Calls (be wary, get something in writing, do your research, and don't give out private or credit card information to inbound callers), Protecting Yourself From Online Scams (again, be wary, don't give out information based on unsolicited emails, delete unknown emails with attachments), and How to Stop Solicitations by Mail (request that your name not be shared with other charities, call the charity directly to stop the mail, and avoid giving lots of small donations to many charities.)

When making a gift of charity, you want to be sure your money will be used properly by an organization you trust. So always do your homework, and ask lots of questions, before you give.

Making Sure Your Paper Work is Signed

I recently heard a story about a man who had passed away suddenly, leaving behind a young adult daughter.  He had been at a job that had offered him life insurance and certain other benefits when he retired a few years back.  However, as the grieving daughter began to sort through things, she realized that he had never signed any of the paperwork that would have put these benefits into effect.   

Maybe the father thought he'd get around to it soon, maybe there was a miscommunication with the company, but the reality of it is that this man's only heir is now left with a lot less than what her father intended.  And when she should be dealing with the death of her father, the daughter is having to deal with human resource departments, insurance companies and attorneys. 

Take some time over the next week or so to check in with your employer (or yourself if you are your own employer) to make sure that you've signed up for all the benefits that will protect your family in the event of your death or disability.  Make sure the papers have all been properly filled out, and that your beneficiary designations are current.

If it's been a few years since you've reviewed your estate plan, go over that as well to make sure it is still up to date.  If you haven't done your estate plan yet, call me at 781-749-2284 to find out how to get started. 

Appointing More Than One Person As Agent in Your Documents

One of the decisions that my clients often find the hardest to make working on their Wills, Powers of Attorney and other estate documents is deciding whom to appoint as the agents in those documents.  The agent (or Executor in a Will) is the person who act on your behalf in the event you are unable. For instance, in a Power of Attorney, the agent will be able to do your banking for you, file tax returns, hire people to take care of you and even sell your house (if appropriate and if allowed by the document.) 

Clients will sometimes want to appoint two children as joint agents so that things are "equal" and they aren't favoring one child over the other.  If this is the case, I often advise them to think about it some more.  Deciding who to appoint as your agent is not about making people feel good, or avoiding hurt feelings - it's about making sure that your wishes will be carried out in a timely manner when there is a crisis.  And being appointed as a person's agent under a Power of Attorney can be a lot of work and involve taking time off of work or away from family matters to tend to things. 

Things to keep in mind when choosing to appoint joint agents or executors are:

• why do you want to appoint joint agents? Are you trying to make things even? Do you not fully trust one of the people and you want to have a checks and balance system in place?
• have you talked to the individuals involved to see if they want to serve jointly with another person?
• do these two people get along?
• do they tend to think along the same lines so that there will not be a delay in making decisions due to disagreements?
• have you considered what might happen if they are unable to reach an agreement and necessary action must be delayed due to the indecision? 

If you want two of your children each be able to assist you with different matters, and be able to split up the work, you could appoint joint agents who each have the power to act separately (meaning only one of them would need to sign a document for it to be effective.)  Again, you want to be sure that they will not be working against each other, but this can alleviate some of the logistics of obtaining two signatures from people who live in different states and have different schedules. 

Part of the work that I do with my clients is helping them sort through issues like these so that their estate documents (and the agents appointed) will serve them well in a crisis. 

Do you know where your Will is?

I often meet with clients who have Wills that were drawn up 20, or more, years ago.  Usually the clients have copies of the Will and the originals are with the attorney who drafted the Will.  And many times the clients have moved around since the original drafting, and many more times the attorney has moved offices, or even retired.  Did you think to tell your attorney from 20 years ago when you moved last year?  What if he or she was retiring or passed away and the attorney taking over the files needed to notify you? Would they be able to find you? 

If you do not have your original Will, make sure you check with the attorney who does have it to make sure they have your current contact information to be able to notify you in the event that they move their office, or are retiring.  Even better, have your old Will reviewed to make sure that it is still an accurate reflection of your wishes, that the people you appointed as Executor are still around, and that your planning needs have not changed in the last 20 years, which they probably have.  If you had small children when you first drafted the Will, chances are they won't be needing those guardians that you appointed in the Will, and you may even want one of your children to act as Executor now.  And if you are nearing retirement, facing a long term  illness or have a child with special needs or addictions you need to know what types of protections are available to you and your family. 

So find your Will (the original), dust it off, and have it looked at by an attorney.  You'll be glad you did. 

Charitable Giving - Being Specific with Your Wishes

Many of my clients want to remember certain charities in their Wills or Trusts.  They may say "I want to leave money to my church" or "I'd like to set aside some funds for the Salvation Army" or perhaps another charity that has local and national branches.  One thing to keep in mind when thinking about leaving money to a charity, is that it is important to consider where and how you'd like the funds to be used. 

Your church may have several different locations where the funds can be distributed, and if you want your money to stay in your local parish, you'll need to make sure it isn't left to the state or national branch.  You may even be able to specify that you'd like it to be used for a certain purpose at your local level - such as religious education, upkeep of the facilities or other special uses.   Likewise, the Salvation Army and similar charities have both local and national branches.  If you don't specify where you'd like the funds to go, they very often end up at the national level, even if you wanted them to stay in your community.  If you are leaving funds to a hospital, which are sometimes considered charitable organizations, you can also specify that the funds be used for a particular purpose.   

If you are unsure of your options, you can contact the charity or religious organization yourself to speak to someone in their planned giving department, or you can ask your attorney for assistance.  Many times, the attorney has dealt with bequests to that charity before, and can provide you with some guidance in determining how you'd like the funds to be used.  And, after you've made your decision, your attorney will coordinate with the charity to ensure that the appropriate wording is used in your estate planning documents.

When discussing charitable giving with your family, and ultimately with your attorney, make sure you specify where you'd like the funds to be left, and how you'd like them to be used.  This way, you know your wishes will be carried out and that your funds will be used the way you intended. 

Setting Goals, Not Resolutions

People like to set resolutions for the New Year - lose weight, spend more time with family, get their estate plan in order, put finances in order.  But resolutions always seem to fade by February. Maybe it's because they are too vague, too big, too unwieldy. Why not set goals instead, with mini-goals along they way to get you there?

If your goal is to get your finances in order, start with tracking your spending.  You don't need anything fancy, a notebook or spreadsheet on your computer will be fine.  Next, keep track of all your bills and income. When you have a month or so of expenses tracked, and all of your bills in one place, contact a financial planner to help you make sense of it all, and put a plan in place for moving forward. This might involve investing your money in a certain way, obtaining appropriate insurance policies, even setting up a college fund for your children. 

If your goal is to "get your affairs in order", again, start small.  First, sit down with your spouse or partner and decide what you want to accomplish.  It might be making sure someone is appointed to care for your children if you are unavailable, or having someone be able to make decisions for you and manage your finances if you are unable.  Perhaps you want to protect your assets, or provide for a child with special needs, or maybe you just want to make things simple for your family if you pass away. 

After you've thought about your "big" goals, think about who the people are that you trust and who you'd want to handle things in the event you are unable.  It might be that you and your spouse choose each other as the primary agent named in your documents, but that you each choose different alternates.  That is fine.  In addition, you can choose different people to manage your finances, make health care decisions and become the guardian of any minor children.  The important thing is that you are choosing people you trust, and who will be able to handle the responsibilities. 

Once you've decided who you'd like to appoint and what your vision for the future looks like, or even if you've just narrowed it down a little, you should contact your attorney to meet and talk about your plans. Your attorney can review your current situation and your goals and let you know what you need to do to achieve them.  Before you know it, you'll be on your way to having your estate plan in place and you can move on to working on your other goals like reducing stress and getting in shape. 

Health (and other) Effects of Clutter

The New York Times had a recent article on the health effects of clutter.  The article points out that if you can't find your shoes, you certainly won't be able to go walking, and if you can't find your medications or other instructions from your doctor that could be harmful to your health as well. 

In addition to possibly harming your health, clutter could make it difficult for your loved ones to help you in a time of crisis.  If you are admitted to the hospital urgently, and a copy of your health care proxy is needed so that someone can communicate with the doctor, you don't want your family to have to search through piles of paper or lots of unmarked boxes.  Additionally, in the event of your passing, your family should be able to easily locate your estate documents such as a will or trust, burial plans, any insurance policies you have and information about your bank accounts and real estate. 

Why not set a goal to get your paperwork in order for the New Year?  A simple fireproof box from an office supply store (make sure you either leave it unlocked or tell your family where to find the key), along with some folders and labels will make quick work of the job.  You can then rest assured that in the event of an emergency, your family can concentrate on what matters - you, and not be endlessly searching through your clutter. 

ABA Guide to Wills and Estates

The American Bar Association has book called the Guide to Wills and Estates available for downloading from their website.  The book guides you through the different estate planning tools, and talks about how planning now makes things easier for your family later. 

While advice from a book does not replace a relationship with an attorney, it can certainly help you figure out what you want your plan to look like, and help you understand some of the things you'll be talking about with your attorney.  And, the book is written with general advice that is not specific to any one state, so keep in that some terms or processes described in the book might be slightly different in your state.

If one of your New Year's Resolutions is to get your estate plan in order, this book can be helpful in getting you started, but you still need to be the one to actually call your attorney and make the appointment. 

Understanding What You are Signing

I often hear from people that they have some sort of estate plan in place, but they aren't sure what's in it because they didn't really understand what they were signing, and they haven't looked at it since they left the attorney's office months or years ago.

Signing your estate plan can be overwhelming.  There may be 10 or more documents signed at one time, and some of the documents can be quiet lengthy.  However, your attorney should have explained in detail (and in plain English) what each documents does, when it takes effect, when it is revoked, what power you are giving to the people named in the document and when it should be revised.

If your attorney is explaining something and you don't understand, tell her.  Ask her to phrase it a different way, ask for an example. Ask until you understand.  I always check in with my clients to make sure I have not lost them, because while I understand what I'm talking about - it's very important that they understand, too!

What makes sense to one person, might not to another so even if your spouse understands, you need to also.  There might come a day when your spouse is not around to explain the documents to you, or you need to use them because your spouse has fallen ill. 

And don't be afraid to call your attorney after the meeting if you want something cleared up, or if you have more questions.  The plan is being put in place to work for your specific situation, so make sure you understand what you are signing. 

Should You Discuss Your Plans with Your Children?

Clients often wonder if they should share their estate plans with their children. Now, these are not clients who are setting up elaborate trusts with millions of dollars that will flow down to future generations, these are just regular people who worked hard all of their lives and are now trying to figure out how to best divide up their estate.  My answer to this question is, of course, it depends.

If you are dividing your estate up equally among all of your children, you may think there is no need to discuss your plans with them. However, if you are appointing one of them as the executor/executrix, you should let that person know that you are planning on appointing them, and you should let the others know your choice.  If you can't decide who to appoint, you might want to talk to your children to find out if they have a preference.  One might be better equipped to take over management of your finances when the time comes, while another feels more comfortable making medical decisions. 

It gets trickier if you have a child with financial, drug or alcohol problems who you've either chosen to disinherit or have made special provisions for through a Trust. Often times, in cases like this, inheriting a large sum of money (even $10,000.00 at one time) could be harmful or deadly to someone with drug or alcohol problems.  If you are in contact with this child and you think they would understand the reasons for your decisions, you may want to talk to them.  If you are not in contact with the child or you think that bringing it up would cause problems, it may be best to not address it at this time.  Be aware that your child will in all likelihood find out the way you've distributed your estate after your death, and may become angry at their siblings who have inherited more.  You might consider drafting a letter to be opened by that child after your death, which explains your reasons.

If you do decide to talk to your children, you could follow the lead of one of my clients who threw a pizza party at her house and invited her children to come and talk about her plans for the future, who wanted to be appointed as what, and how they wanted certain items of her personal property distributed among them.  It might have even prompted her children to go home and think about their own plans for the future. 

Changed your mind? Make sure you change your will.

The Boston Globe had an article today about a Rhode Island man who had disinherited his two young children, and their mother's fight in court to obtain some of the estate for their use. 

What struck me about the article were the last few paragraphs:

Family members on both sides of the dispute agree on one thing: Corky Sliwkowski loved his daughters dearly. In the two years before he died, he saw the girls frequently, bought a camper to take them on road trips, and planned to expand his Rhode Island home to accommodate their visits, Joe and Barbara Sliwkowski said.

But Corky Sliwkowski never changed his will to reinstate his children. His brother and ex-wife said they believe the document was written when he was in a dark period caused by the manic-depressive disorder he had been diagnosed with a decade earlier. They said his illness could have caused him to forget what the will said, or postpone revising it.

The dead man's longtime pastor, the Rev. Joseph Creedon, of Kingston, R.I., said he believes Sliwkowski would have changed the will in time.

"You don't expect a will to come into play for years," he said. "So if you want to change it, you feel you have plenty of time."

While no one can ever know what he was thinking, it appears that his family and friends believed that he had changed his mind about disinheriting his daughters in his will. Sadly, he never changed his will to reflect his wishes.  The article points out that he did leave life insurance for the children so the finances may not have been an issue, but what child wouldn't feel hurt at being left out of their father's will?

If you've left someone out of a will and have had a change of heart, don't wait to make the changes to put them back in. You never know what life holds.

When Do you Buckle Your Seat-Belt?

Do you buckle your seat belt when you get in the car?  It's easy, doesn't take much time, and you know you'll be protected in the event of an accident. 

Do you figure that since things are fine now, you'll wait to fasten your seat belt until you feel the car start spinning out of control? Unless you have the reflexes of Superman, you probably won't have enough time. 

Or do you just never buckle your seat belt and figure that your family and other professionals can handle things in the event of an accident, because you are just too busy to do it now. 

What does this have to do with estate planning? Well, other than the fact that you hopefully have your plan in place in the event of an accident, it seems that my clients fall into one of these categories when it comes to planning for the future.

There are those who want to be prepared, and who get their plan done in a few visits.  They don't have to worry about what will happen to them or their loved ones in the event of a crisis.  They have had time to carefully think through their decisions, and make sure everything is just how they want it.  They are calm when they come to see me, and relieved when they leave.   They have their seat belts securely fastened and can enjoy the scenery. 

Then there are those who put off planning until it is almost too late.  They are leaving the country in 3 days and only have time to do a Wills, Powers of Attorney and Health Care Proxies and not the Trust and other planning that they wanted to do.  Or their mental capacity is slipping and the time they have to plan, before someone else needs to handle their affairs, is very limited.  What they have is better than nothing, but it will leave some complications for their loved ones to deal with in the event of their death or incapacity.   The expenses are higher, the risk of running out of time is greater.  They are stressed out when they come to see me, but mostly relieved when they are done. 

Then there are those who make no plan.  These are the saddest cases.  There has been a crisis in the family and instead of being able to concentrate on their parents or other loved ones, the children are visiting the attorney to try to sort out the legal mess.  They are trying to figure out what their parents have so that they can pay for their care, or apply for Medicaid for them.  Maybe they are having to go to Court to get a guardianship over their parents so that they can sell the house or handle the finances.  Maybe there are siblings who don't get along and can't agree over who should do what, and it's back to Court to let the judge decide.  Things that could have been decided when the parents were competent, are now being fought over.   Adult children who have their own lives and families to think about are having to jump through ten hoops to accomplish the same thing that would have been completed with a simple task had their mother or father or aunt or uncle executed a Power of Attorney.

These clients are sad, stressed, worried, angry and scared when the come to see me.  As we work through the issues at office visits, home and hospital visits, trips to Court and telephone calls the burden starts to lift, but the feeling of relief does not come as soon or in the same way as if there had been a plan put in place when there was time.

If you are ready to stop thinking about it and start planning, please call me at 781-749-2284.

Paperless Records can Leave Heirs in the Dark

This article from the Wall Street Journal, Paperless World Can Leave Heirs in the Dark, outlines the dangers of keeping all your records on your computer.  With online bank accounts becoming more common, there might not be paper statements of your accounts, and if you don't leave a record of them, your heirs might never know you had them.  And it's not just your death that would require them to know what you have, if you become incapacitated and funds are necessary to pay for your care - you'll want your loved ones to know where to find those funds.

The article outlines the information you should have in case of an emergency.  It doesn't need to be posted on your refrigerator, but it should be kept in a safe place in your house, and you should let someone you trust know where to find it.  The information includes:

• details about your assets, what they are, how they are held, where to find the account information.  If you have out-of-state real estate or other assets, be sure to include these.
• the names of your advisers - your financial planner, your accountant, your attorney, the guardian you've chosen for your minor children.
• information about any safe deposit boxes you might have.
• where your estate planning documents are located: your Health Care Proxy, Durable Power of Attorney, Will, Trust and deeds.
• insurance policies: long term care, life and health.

A wonderful way to keep track of these things is with the What If... Workbook, created by Gwen Morgan.  The workbook provides a place for you to document:

   

• financial information
• personal contacts
• location of important documents
• whether you want burial vs. cremation
• how to care for pets
• family medical history
• special gifts you'd like to leave for loved ones
• and even space for you to start documenting the type of legacy (other than financial) that you would like to leave behind for your loved ones. 

To help you get started, and to provide the often necessary accountability to complete the workbook, Gwen holds small group sessions or individual meetings.

Click here to receive the Workbook at a special rate, just for readers of this website.  You could get them for you and your family members for the holidays, as a good way to start the discussion about planning and  your wishes for the future. 

   

Another Reason to Plan Ahead

Sometimes, the first time I meet a client is in the nursing home or hospital following a crisis.  The person's spouse or child or friend has called me to meet with their loved one and draw up the necessary legal documents - a health care proxy, power of attorney, will or trust, maybe a Medicaid Application- while the client is still capable of making decisions and signing documents.   Visits like these are quite common for the elder law attorney, but they are not common for the client.  The client is already in a vulnerable situation, sick or injured, and now there are legal matters to be dealt with because no plan was put into place before. 

I do my best to make my clients feel at ease, shooing the family out of the room so I can speak to my client alone and find out how they feel, what they want, and what they don't want.  Very often the information that the family member gave me over telephone differs from the account of my client, so I want to make sure I get the whole story.  I also assure the client that I am their attorney, not their child's (even if their child is paying my bill) and not "the family's" and I inform the other family members of this as well, so there is no question where my duty and loyalty lie. 

Making decisions about who should serve as your power of attorney, or how to divide your estate should ideally be made after careful thought and not in a moment of crisis.  By making a commitment to yourself that you will meet with an attorney and get your planning done, you are giving yourself this time to carefully think through your choices, and you can rest assured that when a crisis hits, the only people rushing to your bedside are your family and friends - not your lawyer!

Jennifer Sawday of Tredway, Lumsdaine & Doyle, LLP in California, addresses the same issues in her recent post on nursing home visits.

Why You (yes, you) Need a Will

I sometimes have people say to me, "It's just me and my wife, we have no kids yet, and if I die all my stuff goes to her. We don't need Wills."  This makes me cringe, because I have seen what happens in this situation, and related ones, if there is no Will.

In the above situation, if all the property is held jointly, then yes, upon the death of the first spouse all of the property will pass to the survivor. But, what about a car accident where both spouses die? (Yes, it happens.) Then, each spouse is deemed to have survived the other, and their property passes to their other heirs (siblings and parents). If everything was owned jointly - it is split down the middle and divided among the 2 families.  That's fine, you say, I want my family to get my stuff.

But, what if your mother or father is receiving Medicaid coverage in a nursing home? Their share would disqualify them from coverage and be consumed quite quickly by the nursing home, when you may have another relative who needs it more.  What about your sister with the gambling problem? or your brother with the drug problem? or your brother in law who is on SSI due to his disability? Is inheriting a large amount of money a good thing for them? What will the ramifications be? Did one spouse come to the marriage with significantly more assets and now everything is held jointly? Will that spouse's family try to fight for a bigger share?

And who will be appointed the administrator of each estate? When you make a Will, you get to decide who will manage the estate. Without a Will, the Court will decide based on who petitions to be the administrator and who objects to the petition and why.  That person must also purchase a bond, which could have been waived in your Will.  Is this really something the families should be going through at a time of grief?

Drawing up a Will now can save your loved ones time, money and the hassle of picking up the pieces when you die.  They will have enough to deal with, spending more time than necessary settling your estate should not be one of them. 

If you are ready to get started, you can call me at 781-749-2284.

"Do I Need a Health Care Proxy If I am Married?"

Through the magic of technology, I can tell what people are searching for on the Internet when they find my website.  One of my visitors googled "do I need a health care proxy if I am married?"  I'm not quite sure why the person thought they might not need one just because they were married, and the answer is a resounding YES!

A health care proxy is a vital document for everyone over 18.  This document allows you to appoint someone you trust to make health care decisions for you in the event of your incapacity.  For instance - if you are in a car accident and are unconscious for a few hours or days, or you have a stroke and are incapacitated for a longer time. 

You need this document even if you are married.  You can, of course, appoint your spouse as your health care proxy, but you should also appoint an alternate in case you and your spouse are both incapacitated. 

Without a health care proxy, your doctors will turn to your family to make your decisions, probably your spouse first.  But, if your parents and spouse disagree about your care, this can cause real problems (see Terry Shiavo). The best thing to do is execute a health care proxy appointing the person you choose as your health care agent and then talking to that person and your other family members about your wishes. 

You can download a Health Care Proxy form (for Massachusetts) here, or if you are getting ready to visit your attorney to do your other estate planning, she can prepare a health care proxy for you along with your other documents, usually at no extra charge.

Estate Planning When Your Child is an Addict

People often consider putting an estate plan together when they are going through a crisis. But how often do they think about doing (or re-doing) their estate plan when their child is in crisis?  A recent article in the Boston Globe about parents of heroin or oxycontin addicts who have formed support groups made me wonder how many of these parents have changed their Wills, Trusts, or life insurance policies  to reflect the crisis that their children are in. It would be quite dangerous (and perhaps even deadly) for an addicted child to inherit money outright. 

Even an adult child who is having problems with gambling, alcohol or drugs should probably not receive large inheritances outright, and should certainly not be named as your Power of Attorney (the person who would be managing your property in the event of your disability.)  If an adult child is named, and there has been a severe change in their circumstances, you should review your estate plan. 

While it can be distressing to admit, you must let your attorney know about these issues when you are planning your Wills, naming beneficiaries on insurance policies or retirement accounts, and when choosing agents to serve under the various documents.  Your attorney can let you know about the various strategies that exist to make sure that your child is protected in the event of your death - both from the danger of having access to no money, and the danger of having too much. 

(For information on the support systems available in Massachusetts for parents of addicts, visit  http://learn2cope.org/ .)

You Have a Plan in Mind, but Do You Have a Plan in Place?

I was speaking with someone from the Planned Giving Department of the Salvation Army today.  She was relaying the story of a woman who wanted to leave a donation to the Salvation Army in her Will.  She had an old Will that left her money to some nieces and nephews, she also had several bank accounts that named one niece as the beneficiary on the account (the person who was to receive the money upon her death), and she had a hand written note listing who she wanted her money to go to, including the Salvation Army.

Despite her wishes to leave a bequest to the Salvation Army, she never saw an attorney to make sure that her plans would be carried out. 

When the woman died, all of her accounts were automatically payable to the one niece listed as the beneficiary.  The other nieces and nephews listed in the Will inherited nothing, since the funds passed outside the Will.  This has lead to problems in the relationships between the cousins, which could have been avoided had the aunt understood that her Will would not adequately provide for them.  In addition, because she never formalized her plans, there was no money to leave to the Salvation Army.  Thankfully, the niece found the handwritten note and voluntarily made a donation in her aunt's name, but she was under no obligation to do this and there was no guarantee that the niece would have found the note, let alone chosen to make a donation. 

It is good to have a plan in mind, but after you make your plan, you need to see an attorney to make sure that your plan will actually be carried out the way you intended. 

Talking to Your Family About Your Estate Plan

In addition to meeting with your attorney to discuss your estate plan (your Wills, Durable Powers of Attorney, Health Care Proxies, Trusts, etc.) you should also talk with your family about your plan.  If you have children you are appointing as executors or agents, they need to know this and should agree to be appointed.  If you have minor children, you need to talk to the people you are nominating as guardians to make sure that they agree to take on this responsibility.

There are several opportunities to talk to your loved ones:

1.  Before you meet with your attorney:  If you have started thinking about putting your plans in writing, and you have a pretty good idea of who you want to appoint, you can bring up the subject and ask if they would agree to be nominated as your executor or agent.  Often, if you are appointing your children they may ask "are you dying?" when you bring this up, but you can remind them that everyone needs a plan for what would happen in the event of incapacity or death, and you are just choosing to take care of it while you are healthy. 

2.  After you meet with your attorney:  If you are working on your plan for the first time, and aren't quite sure who to appoint, your attorney can talk to you about what the different roles entail, and ask you questions to help you determine who the best choice would be.  Remember, there is no "rule" about who you have to appoint - you do not have to appoint your children in order from oldest to youngest, you do not have to nominate a relative to serve as guardian for your children, and you do not have to have the same person appointed in each document.  After you meet with your attorney and narrow down your choices, you should then speak to the people to make sure they will accept this responsibility. 

After my clients sign their documents, and have spoken to their agents, I send a letter to the people they have appointed explaining what their duties are, and request that they sign an acknowledgment form showing that they understand what they need to do in the event they are required to act on behalf of their parent or friend.  This also gives them the chance to contact me with questions before there is a crisis, and of course, I am available to assist them in carrying out their duties if there is a crisis.

So, make sure you talk to the people you are thinking of appointing as your agent or representative, it will give you peace of mind to know they have agreed, and it will give them a chance to make sure they understand what is being asked of them.

Moving Parent to a Different State - Make Sure to Review Estate Documents

If your parent is moving to a different state, or you are moving your parent here from out of state, one of the first things you should do is have an elder law attorney review their Durable Power of Attorney, Health Care Proxy and Will or Trust to make sure they conform to the requirements of the new state, and take into account the changes that might be down the road.  This is especially important if you moved your parents here because of declining health.

Delaying getting these documents in place can cause significant problems down the road if your parent's health declines to the point where they are no longer capable of signing new documents, or if they need nursing home care and the appropriate plans have not been made. 

The elder law attorney can also serve as a good resource if you need  recommendations for home care for your parents, adult day programs, assisted living facilities or other services. 

Preparing for the Estate Planning Meeting

You've scheduled an appointment with your attorney, and the meeting to talk about your estate plan is next week.  You have the information form she asked you to fill out, but in addition to listing your assets and income and children, there are other things to think about that don't fit so nicely into a box on a form. These are some of the things your attorney will ask you about, and that you (and your spouse or partner) should think and talk about before the meeting.

• How are your assets held? Are the beneficiaries on your life insurance policies and retirement accounts up to date? Have you even assigned beneficiaries? Do you have contingent beneficiaries listed?
  
  
• Do you have any children (or grandchildren) with disabilities? This can include mental or physical disabilities, and drug and alcohol addiction.  Be sure to bring up these issues with your attorney, and she can advise you on the best way to plan.
  
  
• At what age do you want your children to inherit money? Most people aren't ready to handle large amount of money at age 18. Your Will or Trust can be structured to allow payments at different ages.  You can even make it so that the funds can be held back if you child is in a position that would make a distribution inappropriate at that time (if they are gambling, or suffering from an addiction.)
  
• Who do you want to carry out your wishes? You need to think about who you want to choose as your agent under your Durable Power of Attorney, the executor for your Will, , your Health Care Proxy, the guardian for your minor children, and the Trustee for any trusts you might need.  Have you talked to these people yet about your plans?
  
  
• Do you have old Wills or Trusts, or other legal documents? Gather these up and bring them with you. Your attorney will probably want to review them.
  
  
• What are your other concerns?  No matter how trivial (or embarrassing) you think they are, if they might matter when making your plan, ask them.  If you think of questions while preparing for the meeting, write them down so you don't forget to ask your attorney.  And if you think of more questions after you leave, call her.

So, Your Kids Want You to See an Elder Law Attorney?

Many of my clients come to me by way of their children. Their adult children start worrying about their parents “getting their affairs in order” and they call or email me, maybe they even make the appointment.  You may find this helpful, you may find this meddlesome, or somewhere in between.  But they are just looking out for you, as you have always done for them. 

Some important things to keep in mind.

•    There’s more to getting your affairs in order than deciding who gets your stuff when you die. The more important consideration is figuring out who’s going to help you manage things while you are still alive, but need assistance or are unable to act on your own behalf.  Then you can figure out who’s going to get (or not get) your stuff when you die.

•    If we meet, I can review your current situation, answer all of your questions, give you information about what steps I recommend for you, what everything means, what the alternatives are and what the cost will be.  How we proceed is completely up to you. 

•    I can come to your house.  Many of my clients have difficulty getting out, or maybe they are just more comfortable meeting at home, since that is where the big box of papers is. Whatever the reason, if you need a home visit, just let me know.

•    If you hire me, anything you tell me remains confidential (even from your children, even if they made the appointment, even if they are paying my bill.) I will be your attorney, not your children’s.

•    Drawing up your Will, Trust or Durable Power of Attorney can be a relief – you are done with the process, and unless there is a significant change in your circumstances the documents will be good for years to come.  Plus, your kids will stop bugging you about it.