The Legal Checkup Blog

Guardianship law expected to bring order out of ‘chaos’

Posted by Judith Flynn on Sat, Nov 01, 2014 @ 19:11 PM

Great article in Mass Lawyers Weekly - it shows some of the great advocacy of MassNAELA.

 
BAR APPLAUDS GUIDELINES FOR SETTLING JURISDICTIONAL SPATS
By: Pat Murphy October 16, 2014

Massachusetts judges will receive long-overdue guidance for resolving jurisdictional disputes when the new adult guardianship law goes into effect Jan. 1, while... guardians and conservators should find it easier to perform their duties across state lines, elder law attorneys say.

Signed by Gov. Deval L. Patrick on Aug. 5, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act provides a clear mechanism for deciding whether Massachusetts or another state should have jurisdiction when an incapacitated elderly person or disabled adult has contacts with multiple states.

In addition, the measure provides procedures for guardians and conservators to more efficiently exercise their authority outside the jurisdiction of the state in which they were appointed, while establishing a mechanism for transferring a guardianship or conservatorship from one jurisdiction to another.

“The act will let conservators and guardians focus more on the care of the individual rather than on dealing with the courts to get additional appointments,” said Judith M. Flynn, president of the Massachusetts chapter of the National Academy of Elder Law Attorneys.

MassNAELA joined the Massachusetts and Boston bar associations, Massachusetts Guardianship Association, AARP and other groups in supporting the reform measure.

Attorney John J. Ford advocated for passage of the act asdirector of the Elder Law Project for the Northeast Justice Center in Lynn. Ford said the statute will bring order to a “very chaotic” system in which Probate & Family Court judges “winged it” in the absence of a law providing clear guidance on addressing multi-jurisdictional disputes.

“The new law describes what the court is supposed to do in determining which state should have jurisdiction and whether the authority of a fiduciary appointed in another state should be conferred in Massachusetts,” Ford said.

West Springfield attorney Eileen Sullivan-Boss has been looking forward to the state’s adoption of the measure since the Uniform Law Commission finished drafting the model law in 2007.

“I can’t see any attorney who practices in this field as being anything but grateful for the adoption of this act,” said Sullivan-Boss, who in addition to practicing elder law is a registered guardian and member of the Massachusetts Guardianship Association.

Jurisdictional clarity

The Legislature enacted the legislation as Article 5A of G.L.c. 190B. The centerpiece of the law is the jurisdictional provision, §5A-203, which establishes a three-level priority for determining what state has jurisdiction over a protected person who is elderly or disabled.

Under §5A-203, the individual’s “home state” has primary jurisdiction to appoint a guardian or conservator, or enter a protective order. Section §5A-201(a)(2) defines “home state” as the state in which the adult who needs a surrogate decision-maker is “physically present.” The home state priority continues for up to six months following the individual’s move to another state.

Section §5A-203(2) provides secondary jurisdiction for a “significant-connection state,” which generally applies if the individual has not had a home state within the past six months or the home state has declined jurisdiction.

Section §5A-201(a)(3) defines “significant-connection state” as a state other than a home state with which the individual “has a significant connection other than mere physical presence.” The statute lists factors such as family ties, the location of the individual’s property, tax filing and voter registration as factors to consider for determining whether a significant connection exists.

Thirdly, the jurisdictional provisions operate to allow a state court in Massachusetts to exercise jurisdiction if the home state and all significant-connection states have declined jurisdiction because the commonwealth is the more appropriate forum.

Importantly, the act also allows for a state court to exercise special jurisdiction under extraordinary circumstances, such as the need for the appointment of a guardian in an emergency.

Flynn said it was critical that the act created a clear framework for state courts to resolve jurisdictional questions given the fact that today’s population is mobile and it is not uncommon for people to move from state to state and own property in different states.

“A court now has a lot of flexibility in determining whether to accept a case or to determine that it’s not the appropriate jurisdiction, or to make emergency orders in the meantime until another court is able to get involved,” Flynn said.

Out-of-state enforcement

The statute also will go a long way toward enabling guardians and conservators to perform their duties across state lines more efficiently. Conservators are appointed to administer the property of an adult; guardians make decisions regarding the person of an adult, such as medical care.

Ford said that Massachusetts courts in the past were often at a loss as to what to do when a guardian from another state sought to exercise his authority in the commonwealth on behalf of an elderly or disabled person.

“What do you do? Do you have authority to consent to medical treatment? Do you have authority to place her in a nursing home? All those questions were unanswered,” Ford said.

Section 5A-401 authorizes guardians appointed in other states to register guardianship orders in the commonwealth. Similarly, under §5A-402, conservators appointed in other states may register protective orders here.

Under the act, the effect of registering such orders is profound. Section 5A-403(a) provides that, upon registration of a an order from another state, “the guardian or conservator may exercise in the commonwealth all powers authorized in the order of appointment except those powers prohibited under the laws of the commonwealth.”

Flynn said that means those appointed as guardians and conservators in other states will no longer be required to apply separately for appointment in Massachusetts simply to have orders enforced. She noted that the appointment of a guardian or conservator in Massachusetts would similarly be honored in any other jurisdiction that has passed its own version of the statute.

“If I’m appointed in Massachusetts, but my protected person has property in another state, in the past I would have to go seek an appointment in that other state in order to sell the property,” Flynn said. “Now, there is a process under this act where you can just file your Massachusetts appointment in that other jurisdiction in order to accomplish what you need to accomplish.”

The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act has been passed in 39 other states. All the New England states, with the exception of New Hampshire and Rhode Island, have enacted the model law. A bill to adopt the act was introduced in the Rhode Island General Assembly earlier this year.

Transferring authority

Another central feature of the act is its provision for the transfer of guardianships and conservatorships from state to state when an incapacitated individual is expected to move.

Section 5A-301 sets forth procedures for the transfer of guardianships or conservatorships to another state, while §5A-302 provides for the acceptance of guardianships or conservatorships transferred from another state.

“The law provides efficiency, and with efficiency comes lower costs to the estate of someone with limited resources who is elderly or otherwise incapacitated,” Sullivan-Boss said.

“It can also be quicker,” she added. “You may have a person who is in an unsafe situation in another state and you want to transfer the guardianship.”

Sullivan-Boss said she also likes the fact that the new law encourages Massachusetts’ courts to communicate and cooperate with courts from other states.

Section 5A-104 expressly authorizes a court in Massachusetts to communicate with a court in another state concerning a proceeding arising under the act. In addition, Section 5A-105 authorizes courts here to request a court in another state to perform various tasks, including holding evidentiary hearings, compelling depositions, ordering mental evaluations, or ordering the production of financial records.

“The law facilitates communication between the courts to enhance protections for a vulnerable person with decisional incapacity,” Sullivan-Boss said.

She said it is important that the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act authorizes courts to sanction parties that engage in wrongful conduct in seeking to invoke the jurisdiction of the commonwealth’s courts.

Section 5A-207(a) permits a court to decline to exercise jurisdiction over a guardianship or conservatorship in the event of “unjustifiable conduct.”

Moreover, §5A-207(b) authorizes a court in Massachusetts to assess “reasonable expenses,” including attorneys’ fees and costs, in the event it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct.

The threat of sanctions can be important in dissuading family members from engaging in needless litigation over guardianship and conservatorship matters regarding a loved one, Sullivan-Boss said.

“Remember, the costs associated with litigation are going to reduce the resources that person needs for support,” she said.

Tags: elder law, Legal Check Up, Legal Documents, lack of capacity, Estate Planning

This Black Friday, purchase an Estate Plan instead ...

Posted by Judith Flynn on Fri, Nov 22, 2013 @ 14:11 PM

I have seen it reported that consumers spent $59.1 BILLION last year on Black Friday.  $59.1 BILLION! 

This number is staggering to me, and even more so when I consider the significant portion of these sales that likely represents well-intentioned, but useless, gifts.  So many items will be returned because they are the wrong size, the wrong style, or just not something the recipient wants or needs.

 

Even worse, how many of you have received something that you would never wear or use, but you did not return it because you did not want to hurt the giver's feelings?  Perhaps you re-gifted the item the next year, but let's face it - there is a great deal of waste around the holidays, and the true meaning behind the gifting has been stampeded in a rush to get the best prices.

 

What concerns me even more is that many people take out loans or make these purchases on credit cards, digging themselves deeper into debt in the process.  This is not what the holidays are supposed to be about.  Thanksgiving is a perfect time to reflect as a family, and to take steps to put the meaning back in the holidays.

 

You may want to consider setting a dollar limit, or having a grab to reduce the number of gifts each person needs to buy.  You might consider implementing a new charitable tradition that the entire family can feel good about, such as making or purchasing items for nursing home residents who may not have family of their own, or for homeless families.  You could conduct a food drive to replenish the food pantries that are always in need, or send items to our troops who are in harm's way to protect our country.  The possibilities are endless, and these gifts are always the perfect fit.

 

Let me offer another suggestion.  Before you and your family spend hundreds of dollars on things you probably don't need, consider putting the money towards something you should all have in place.  If every member of your family age 18 and older does not have a basic estate plan in place, consider spending on that instead.  At the very least, you should each have a Durable Power of Attorney and a Health Care Proxy with a HIPAA Release, appointing one or more agents to make health and financial decisions for you if you become unable to do so.

 

You can get additional information on my website about estate planning, long-term care planning, and other services. 

 

www.TheLegalCheckUp.com 

 

Whether you will be part of the Black Friday stampede or collecting items for others, I wish you all a wonderful Thanksgiving!

Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Community Care, family, loved ones, Estate Planning, long-term care planning

Next Legal Check Up BOOT CAMP scheduled

Posted by Judith Flynn on Tue, Oct 22, 2013 @ 23:10 PM

SEMINARS AND WORKSHOPS

Next LEGAL CHECK UP Boot Camp to be held 

Wednesday, November 6, 2013

10 am - 12 pm

SPACE IS LIMITED - PRE-REGISTRATION IS REQUIRED 

Attendees of this free comprehensive workshop will learn the important considerations for a successful Estate and Long-Term Care Plan.  Part of the workshop will be interactive to allow attendees to discuss general problems, concerns and situations.

This workshop will cover:

*what estate planning documents you need in order to achieve your goals and objectives;

* how to properly select Agents, Personal Representatives, and Trustees;

* whether you need a Will, a Trust, or both;

* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)

* how to protect your home and other assets; 

Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.

For more details and to sign up go to:

http://www.thelegalcheckup.com/seminars-and-workshops/

 

Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Health Care Proxy, Last Will & Testament, disability planning, Medicare, Community Care, nursing home, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, long-term care planning

PACE - A program designed to keep seniors in the community

Posted by Judith Flynn on Tue, Oct 16, 2012 @ 08:10 AM

Long-term care planning is a significant part of most elder law practices. While the ideal clients seek counsel long before there is a crisis, the usual clients do not. It is in these crisis situations that clients benefit most from an elder law attorney's knowledge of the resources available in their communities and an understanding of the medical and financial criteria for eligibility.
PACE, the Program for All-Inclusive Care for the Elderly, is a national comprehensive health program created to help elders remain at home as long as possible. While PACE is a valuable resource for many elders, it remains a fuzzy concept for many attorneys and is, thereby, under utilized.

WHERE IS PACE?
Unfortunately, PACE is not available in all cities and towns, but is available in:
Allston, Arlington, Avon, Beverly, Boston, Braintree, Brighton, Brookline, Cambridge, Canton, Charlestown, Chelsea, Danvers, Dedham, Dorchester, East Boston, Essex, Everett, Gloucester, Hamilton,Hudson, Hyde Park, Ipswich, Kenmore, Lynn, Lynnfield, Magnolia, Malden, Manchester, Marblehead, Marlboro, Mattapan, Medford, Middleton, Milton, Nahant, Norwood, Peabody, Quincy, Randolph, Revere, Roslindale, Rockport, Roxbury, Salem, Saugus, Sharon, Somerville, South Boston, South Hamilton, Stoughton, Swampscott, Topsfield, Wakefield, Wenham, West Roxbury, Weymouth, Winthrop, all towns in WorcesterCounty,

WHO IS ELIGIBLE FOR PACE?
In order to be eligible for PACE, applicants must be 55 years of age or older, live in a PACE service area as outlined above, and must be certified by the state as eligible for nursing home care but able to safely remain in the community with the additional supports PACE offers. Members must also agree to receive all health services exclusively through the Elder Service Plan. While many elders are initially hesitant to give up their primary care physicians or other medical professionals, it is the interdisciplinary team model of PACE that allows each member to maximize his or her potential to remain in the community and ensures that nobody falls through the cracks.

HOW IS PACE FUNDED AND WHAT SERVICES DOES PACE COVER?
PACE is jointly funded by Medicaid (2/3) and Medicare (1/3) in a capitated system. In other words, Medicaid and Medicare each pay a set rate per member per month. Medicaid presently pays $3,497 per member per month, with the Medicare rate dependent on the diagnosis codes of each member. Each PACE program must offer a number of Core Services, and may offer elective services based on the various needs of their members. This flexibility allows each program to customize individualized care plans designed to help each member maximize his or her potential.

Interdisciplinary teams of doctors, nurses, social workers, therapists, nutritionists, and other medical staff work together to provide primary medical care, home health, adult day health (recreation), rehabilitation services, transportation, medications, podiatry, optometry, dental, social services, and more. While the majority of PACE services are provided at an adult day center to encourage socialization and activity, services are provided in the home when appropriate. Some PACE programs offer residence in certain Assisted Living Facilities. PACE members never pay more than their income for a PACE apartment in an assisted living facility. If nursing home care becomes necessary, it is paid for by PACE and PACE continues to coordinate the member’s care, so long as the member does not disenroll from the PACE program.

WHAT IS THE FINANCIAL CRITERIA FOR MEMBERSHIP?
PACE accepts Medicare, Medicaid, and private payment. For married couples, only the income and assets of the applicant are countable. For members with monthly income of $2,094 or less per month, there is no monthly spenddown and they can keep the entire $2,094. For members who have income over $2,094, there is a monthly spenddown to $542. Members with monthly income over $4,039 (which represents the MassHealth amount of $3,497 plus the deductible of $542) would pay privately, while members with income below $4,039 would apply for MassHealth in order to keep the $542 monthly. Private pay members pay only the portion that Medicaid would pay, or $3,497 per month.

WHY SHOULD YOU CONSIDER JOINING PACE?
The most significant reason that PACE is appealing is that its primary goal is to provide each member with the individual supports needed to remain in the community as long as possible. Another benefit to consider is that PACE is covered by Community MassHealth, under which transfers of assets are presently not penalized. Therefore, for people who have not done prior planning who are suddenly faced with the need for long-term care services, the option of joining PACE should be explored for 1) quality of life issues and 2) additional planning options. In addition, the application process for Community MassHealth/PACE is far less burdensome than the long-term care MassHealth application, requiring only a few months of financial statements to verify assets (as compared with up to five years of verifications for long-term care MassHealth). Members are free to disenroll from PACE at any time. PACE is not for every body, but if you are fortunate enough to live in a PACE service area, this is an option that warrants consideration.

Call my office at 781-681-6638 if you are interested in exploring the PACE program to help you remain safely in your home.

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Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, disability planning, Medicare, skilled services, Community Care, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Estate Planning, long-term care planning

Common Fraud Schemes Targeted At Seniors

Posted by Judith Flynn on Sun, Sep 30, 2012 @ 18:09 PM

Fraud Schemes Targeted at Senior Citizens

The FBI offers a webpage with a wealth of information and tips on common fraud schemes.  As stated on this wonderful resource page, Senior Citizens should be aware of fraud schemes for the following reasons:

  • Senior citizens are most likely to have a “nest egg,” to own their home, and/or to have excellent credit—all of which make them attractive to con artists.

  • People who grew up in the 1930s, 1940s, and 1950s were generally raised to be polite and trusting. Con artists exploit these traits, knowing that it is difficult or impossible for these individuals to say “no” or just hang up the telephone.

  • Older Americans are less likely to report a fraud because they don’t know who to report it to, are too ashamed at having been scammed, or don’t know they have been scammed. Elderly victims may not report crimes, for example, because they are concerned that relatives may think the victims no longer have the mental capacity to take care of their own financial affairs.

  • When an elderly victim does report the crime, they often make poor witnesses. Con artists know the effects of age on memory, and they are counting on elderly victims not being able to supply enough detailed information to investigators. In addition, the victims’ realization that they have been swindled may take weeks—or more likely, months—after contact with the fraudster. This extended time frame makes it even more difficult to remember details from the events.

  • Senior citizens are more interested in and susceptible to products promising increased cognitive function, virility, physical conditioning, anti-cancer properties, and so on. In a country where new cures and vaccinations for old diseases have given every American hope for a long and fruitful life, it is not so unbelievable that the con artists’ products can do what they claim. 

  • More helpful information can be found on the FBI's website at:  http://www.fbi.gov/scams-safety/fraud/seniors

Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, lack of capacity, Elder Financial Abuse, undue influence, fraud, loved ones, Estate Planning, long-term care planning

THE LEGAL CHECK UP BOOT CAMP (c) - FALL WORKSHOP COMING SOON!

Posted by Judith Flynn on Tue, Sep 18, 2012 @ 22:09 PM

Note:  Rockland and Mansfield Boot Camps are fully booked!  We are maintaining a wait list and an additional date will be added when filled. 

IT'S BACK BY POPULAR DEMAND AND SURE TO "SELL OUT" QUICKLY ... 

THE LEGAL CHECK UP BOOT CAMP (c)

Families come in all shapes and sizes. Whether you are young, a boomer or a senior, single, married (traditional or same-sex), divorced, have children or not, have a family member with special needs, want to leave your estate to your pets ... whatever your situation, you need a comprehensive assessment and and an Estate Plan that is just right for you. Depending on your goals and your situation, your plan might focus on probate avoidance, tax minimization, asset protection, or special needs planning.

"I don't have enough to worry about" you say?

Well, be aware that whether you are wealthy, barely getting by, or somewhere in the middle -- there are basic documents you need to have in place in the event you become temporarily or permanently unable to act for yourself due to a physical or mental incapacity.

You can't afford not to have these basic documents in place in the event of an emergency.  If you don't have basic disability documents that appoint an agent to act on your behalf in such cases, your loved ones would need to petition the probate court for a guardianship and/or conservatorship to obtain the authority to act on your behalf.  These court processes can cost thousands of dollars.

So, delay no more.    

Come and learn how to protect yourself, your family, and your assets in the event of disability or death.

Not just another boring seminar ... in this free, comprehensive workshop you will learn every thing you need to know about Estate and Long-Term Care Planning.  Part of the workshop will be interactive to allow attendees to discuss particular problems, concerns and situations.

This workshop will cover:

* what estate planning documents you need in the event of disability;

* what estate planning documents you need in order to achieve your goals and objectives;

* how to properly select Agents, Personal Representatives, and Trustees;

* whether you need a Will, a Trust, or both;

* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid);

* how to protect your home and other assets;

* how to provide for your child with special needs in a way that improves his or her quality of life without disrupting eligibility for public benefits;

Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.

The Fall workshops will be offered during the day (from 12-3 pm) and in the evening (from 5-8 pm).  Seating is limited to 12 in each session in order to provide individualized guidance to each attendee.  Session dates will be posted soon, but preference will be given to those who pre-register at:

http://www.thelegalcheckup.com/legal-check-up-boot-camp-registration/

 

Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Medicare, improvement standard, Community Care, Elder Financial Abuse, undue influence, family, loved ones, nursing home, rights, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, Estate Planning, long-term care planning

The TRUTH about ASSET PROTECTION

Posted by Judith Flynn on Wed, Mar 28, 2012 @ 08:03 AM

Most seniors I speak with feel that they have worked hard their entire lives, and that they should not have to spend all of their hard-earned assets on nursing home care.  They would like to pass some assets on to their children or grandchildren.

The problem with this, however, is that without proper guidance and advocacy, many seniors are often rushed into an Asset Protection plan that “protects the assets from the nursing home" and "protecs the assets for their children or grandchildren" ... and leaves the senior unprotected and vulnerable.  They fall victim to the many misleading ads in print on the radio that make false claims about asset protection, use scare tactics that are simply unconscionable, or offer deep discounts to sign up "today only."  No attorney worth dealing with is going to use any of these tactics to get your business.  Let me explain.

There are THREE FUNDAMENTAL RULES that you must understand about ASSET PROTECTION ...

1) You have not “protected” an asset until you have given it away, either to a person or a trust, with no legal right to change your mind and take the gift back in the future.

2) There is a five-year lookback period, which means that MassHealth can look at all of your financial statements going back five years, and they will impose a penalty for any gifts you made during that five years.  So, the assets are not fully protected until FIVE YEARS after you give them away.

3)  You could unintentionally be forced to a nursing home if you run out of funds to pay for continued care in your home.  If you “protect” assets by giving them away and getting through the five-year lookback period as outlined above, you will have no legal right to get the assets back and you may be left "unprotected" and unable to pay for the care you need to remain in your home.  

Certainly it is not any senior's intent to end up having to move to a nursing home because they "protected" their assets years earlier ... but it happens.  Part of the problem, in my opinion, is the prevalence of misleading ads that serve to scare and confuse seniors.

BEWARE of legal ads that encourage you to “Protect your Assets” while leading you to believe you are protecting yourself in the process … this is one example of an ad that I find to be very misleading, if not absolutely FALSE.

Learn about Asset Protection Trusts that:

      1) allow you to control your assets until death;

      2) allow you to retain all income from your assets

      3) enable you to protect your assets from the nursing home

     4) ensure you qualify for Medicaid in the shortest period of time

Let’s look back at the Fundamental Rules of Asset Protection.

Number 1 is FALSE because, while you may serve as trustee of the asset protection trust, it is not YOUR assets that you are controlling ... you gave the assets to someone else in order to "protect" them!

Number 2 is FALSE because, while you can retain the right to the income generated by the assets in an asset protection trust, the assets in the trust are no longer YOUR assets!  You gave the assets to someone else in order to "protect" them!

Number 3 is TRUE and FALSE - True because after five years the assets will be protected from the cost of your nursing home care, but FALSE because, once again, they are not YOUR assets any more -- you gave them to someone else in order to "protect" them.

Number 4 is FALSE because there is a 5 year lookback.  Assets transferred to an asset protection trust will not be fully protected until 5 years after they are transferred to the trust, and there is no attorney who can make you eligible with this strategy in less than 5 years.  In fact, there may be ways to make you eligible sooner based on your specific situation, but not with an asset protection trust.

Some asset protection strategies may be appropriate for you, but only if you can ensure your own future security in the process.  This is why a comprehensive assessment of your specific family situation, health and care needs, income and assets, and goals is critical to a successful Long-Term Care Plan.  A Legal Check Up will enable you to fully understand the risks and benefits and pros and cons of asset protection strategies, and will enable you to make an informed decision based on your specific situation.  

Remember, if a radio or print ad seems too good to be true, it probably is. And, if an attorney offers a discount on the cost of an asset protection plan, but the price is good "today only ..."  RUN, don't walk, to another elder law attorney.  These pressure and scare tactics are not appropriate and, frankly, offensive to most elder law attorneys. Your future security must be treated with the importance and thoughtful deliberation it deserves, by you and your attorney.

Call us today at 781-681-6638 to schedule a Legal Check Up or to get a schedule of upcoming seminars, or get more information at www.thelegalcheckup.com.


Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Medicare, Community Care, Elder Financial Abuse, family, loved ones, priorities, Medicaid, Medicaid Home Care

THE LEGAL CHECK UP BOOT CAMP (C)

Posted by Judith Flynn on Sun, Jan 15, 2012 @ 15:01 PM

I've heard many excuses for putting off long-term care planning, including:

Because ...

"I'm never going to a nursing home."

"I have Medicare."

"I have my child's name on all of my accounts, so the state won't count those funds"

"I'm a veteran, so the VA will take care of all of my long-term care needs."

"My kids will take care of me."

"I don't have enough assets to worry about."

"I put my daughter's name on all of my accounts and she will divide everything equally among all my kids when I die."

"I have my assets in a revocable trust, so they are protected."

"I am leaving everything to my son so he can take care of my child with special needs."

"I don't want to hurt any body's feelings so I just won't do any thing."

"I'll do it LATER."

You've probably used a few that aren't on this list too.  But, guess what?  LATER has come. LATER is TODAY. 

The Elder Law Office of Judith M. Flynn has developed a new workshop to help seniors get their affairs in order.  The Legal Check Up Boot Camp (c) is a free, comprehensive workshop to give seniors all the knowledge they need about Estate and Long-Term Care Planning.

This workshop will empower the attendees to stop procrastinating and finally take control of the decisions they have been avoiding for too long.

This four-hour workshop will be taught in two sessions of two hours each.  Part of the workshop will be interactive to allow attendees to discuss particular problems, concerns and situations.

This workshop will cover:

*what estate planning documents you need in order to achieve your goals and objectives;

* how to properly select Agents, Executors, and Trustees;

* whether you need a Will, a Trust, or both;

* long-term care costs and payment options (Medicare, VA benefits, Long-Term Care Insurance, Private Pay and Medicaid)

* how to protect your home and other assets; 

Each attendee will receive a workbook and will "graduate" from the Boot Camp with a detailed, comprehensive plan of action.

For more details about the Boot Camp or to register, go to:

http://www.thelegalcheckup.com/seminars-and-workshops/

 



Tags: PACE, home care, long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Medicare, skilled services, Community Care, family, nursing home, rights, Program of All-Inclusive Care for the Elderly (PAC, Medicaid, Veterans Benefits, Medicaid Home Care, Personal Care Assistance Program

PEACE of MIND Gift Certificates are the perfect stocking stuffers!!

Posted by Judith Flynn on Mon, Dec 19, 2011 @ 18:12 PM

The holidays are a perfect time to give the gift of Peace of Mind.  PEACE of MIND gift certificates provide you with an easy way to initiate a positive conversation about estate and long-term care planning, and encourage your loved ones to get their affairs in order.

Your loved ones will not be offended by this thoughtful gift that still leaves them in control.  Best of all, it will not need to be returned because it  is the wrong size or color (although it can be returned if they choose not to use it, of course).

Exclusively from the Elder Law Office of Judith M. Flynn, PEACE of MIND Gift Certificates may be purchased in any dollar amount, or for specific services such as:  

* a Legal Check Up;

* Estate Planning Package (including Probate Avoidance and Tax Minimization);

* Asset Protection Package

* Special Needs Planning Package;

* College Student Health Care Proxy/Durable Power of Attorney Package.

Contact us today to learn more at http://www.thelegalcheckup.com/contact-us/

Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Living Wills, Health Care Proxy, Last Will & Testament, disability planning, Medicare, family, nursing home, Medicaid, Medicaid Home Care

Give thanks for your health and security, and take steps to protect it for the future.

Posted by Judith Flynn on Fri, Nov 18, 2011 @ 14:11 PM

I've been feeling compelled to once again urge folks to update their basic estate planning documents and take steps to protect themselves and their hard-earned assets because I have seen a significant increase in crisis cases over the past few months.  One panicked daughter could not find out if her mother had been admitted to a psychiatric hospital as she suspected because mom’s Health Care Proxy did not have HIPAA (the health privacy law) release language in it.  The hospital would not speak with the daughter even though she was the named Health Care Agent because the Health Care Proxy is only effective when the principal is deemed incapacitated by a doctor. 

Then I received a call from Margaret to schedule an appointment for her mom (Betty), as her dad (Joe) was hospitalized and would need nursing home care when discharged.  After my meeting with Margaret and Betty, I knew I had to focus on this topic once again.  You see, this family represents the typical readers and, in fact, the typical clients.  Margaret has two siblings, and all of the children have been urging Betty to see an attorney.  They had actually cut my ad out of the SSSN a year ago for mom, who carried it in a folder with some other important information.  Whether Betty was in denial of her husband’s decline, too overwhelmed to deal with the issues, or just resigned that it was too late to do any thing to protect the estate, she didn’t make the call.  Margaret and her siblings did not want to overstep their boundaries and respected Mom’s independence.

So, there we were, faced with crisis planning to ensure that Joe receives quality care while preserving as much of the estate as possible for Betty’s security. There are more options available with advance planning, for sure, but we could still protect most of the estate with crisis strategies. Joe and Betty own four pieces of real estate and have other assets valued at approximately $519,000. Joe may not have more than $2,000 in his name and Betty is only allowed to retain about $109,000. The primary residence is non-countable by MassHealth in this case. Therefore, our plan needed to address the three additional properties and other “excess assets” of about $410,000.  We could protect two of the properties by utilizing exemptions in the MassHealth regulations to convey them out of Joe and Betty’s names.  One property would need to be sold, and we could take all of the excess assets (including the proceeds of the sale of the fourth property) and purchase an annuity that will pay a significant monthly income to Betty.  By converting the countable excess assets to an income stream for the community spouse, we could protect the estate.  Not bad for a crisis plan, right?  Not so fast … while we were able to develop a fantastic plan to protect nearly the entire estate, we can’t implement it!!  Not yet at least.

In order to implement this fantastic plan, we need Joe to sign the Deeds to convey all of the properties out of his name and to transfer all other assets to Betty.  If Joe had executed a comprehensive Durable Power of Attorney that provided Betty with the authority to sign such documents on Joe’s behalf, we could implement the plan using the DPOA.  But he didn’t.  As I tried to explain the problem to Betty and Margaret, Betty reassuringly said, “But he can still sign his name…”  I wish it was that easy, but it is not.  Due to Joe’s dementia, he would not understand what he was signing and I could not, therefore, notarize his signature on the Deeds.  While this plan could have been implemented within a week or two with a proper DPOA, we were instead required to seek the authority of the Court.  We filed a Petition asking the Court to appoint Betty and Margaret as co-guardians of Joe.  Since a guardian (even if it is the spouse) may not convey property of the Ward without Court approval, we must also file a Petition for Authority to Establish an Estate Plan, along with a number of emergency motions to try to get the approval as quickly as possible.  Betty must pay privately for Joe’s nursing home care until we obtain the Court’s approval to do the transfers under the guardianship and obtain MassHealth eligibility.  

I am reminded on a daily basis that the message of the importance of advance planning warrants repeating – over and over and over again.  Don’t be caught carrying an ad a year from now – take steps today to protect yourself.  Update your documents while you can still (knowingly) sign your name! Schedule a Legal Check Up to get started at http://www.thelegalcheckup.com/contact-us/

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Tags: long-term care, asset protection, elder law, Legal Check Up, Legal Documents, Durable Power of Attorney, Estate Planning, Health Care Proxy, Last Will & Testament, lack of capacity, disability planning, family