The Legal Checkup Blog


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:


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

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

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

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

Social Security - Disability Benefits Expedited for 13 Immune System and Neurological Disorders

Posted by Judith Flynn on Tue, Nov 01, 2011 @ 21:11 PM

Social Security is adding 13 new conditions involving the immune system and neurological disorders to the list of Compassionate Allowances.

The Compassionate Allowances program fast-tracks disability decisions to ensure that Americans with the most serious disabilities receive their benefit decisions within days instead of months or years.

"Social Security handles more than three million disability applications each year, and we need to keep innovating and making our work more efficient," Commissioner Michael J. Astrue said.  "With our Compassionate Allowances program, we quickly approved disability benefits for more than 60,000 people with severe disabilities in the past fiscal year."

The new Compassionate Allowances conditions include:

Malignant Multiple Sclerosis
Paraneoplastic Pemphigus
Multicentric Castleman Disease
Pulmonary Kaposi Sarcoma
Primary Central Nervous System Lymphoma
Primary Effusion Lymphoma
Angelman Syndrome
Lewy Body Dementia
Lowe Syndrome
Corticobasal Degeneration
Multiple System Atrophy
Progressive Supranuclear Palsy
The ALS/Parkinsonism Dementia Complex

For more information on the Compassionate Allowances initiative, see the press release at


Tags: long-term care, elder law, disability planning, federal law

RED CARPET PREMIERE of guardianship training video ...

Posted by Judith Flynn on Tue, Nov 01, 2011 @ 17:11 PM

Sign up now for the annual dinner meeting of the Massachusetts Guardianship Association (MGA), featuring the “RED CARPET PREMIERE” of the new training video for family guardians and conservators.

December 6, 2011 at 5 pm

Newbridge on the Charles

6000 Great Meadow Road

Dedham, MA  02026

The video was produced by Northnode, Inc. in collaboration with the MGA and the Office of the Chief Justice of the Probate Court, Paula M. Carey.  The video, "Stepping In When Help Is Needed," was made possible through funds provided by the MGA and a generous grant from the Office of the Attorney General, Martha Coakley.  If you are a family guardian or conservator or a professional who deals with people who need guardians or serve as guardians, we welcome you to this premiere. Spread the word - all are welcome, but RSVP is required as outlined below.

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Seating is limited -- registration is required no later than November 28th:  call the MGA at 617-350-6500 or e-mail 


Tags: elder law, Legal Check Up, Estate Planning, disability planning, Community Care, family, loved ones, Durable Power of Attorney, Health Care Proxy, Last Will & Testament, parents


Posted by Judith Flynn on Wed, Oct 19, 2011 @ 15:10 PM


Monthly Social Security and Supplemental Security Income (SSI) benefits for more than 60 million Americans will increase 3.6 percent in 2012, the Social Security Administration announced today. The 3.6 percent cost-of-living adjustment (COLA) will begin with benefits that nearly 55 million Social Security beneficiaries receive in January 2012. Increased payments to more than 8 million SSI beneficiaries will begin on December 30, 2011. Some other changes that take effect in January of each year are based on the increase in average wages. Based on that increase, the maximum amount of earnings subject to the Social Security tax (taxable maximum) will increase to $110,100 from $106,800. Of the estimated 161 million workers who will pay Social Security taxes in 2012, about 10 million will pay higher taxes as a result of the increase in the taxable maximum.  Information about Medicare changes for 2012, when announced, will be available at   For some beneficiaries, their Social Security increase may be partially or completely offset by increases in Medicare premiums.  The Social Security Act provides for how the COLA is calculated. To read more, please visit <>.

Tags: long-term care, elder law, disability planning, Medicare, Program of All-Inclusive Care for the Elderly (PAC, SSI Living Arrangement G Supplement

Asset "Protection" -- Poor Planning Is Worse Than No Planning At All.

Posted by Judith Flynn on Fri, Sep 30, 2011 @ 16:09 PM

The call from the facility to inform me that Howard had passed away triggered a variety of emotions in me, but not for the reasons you might expect. Howard had no family and had not executed a Durable Power of Attorney (DPOA) or Health Care Proxy (HC) to appoint someone to make decisions on his behalf. So, when Howard was suffering from dementia and no longer able to live alone in his apartment, Elder Protective Services asked me to serve as his court-appointed guardian. As Howard’s guardian, I became responsible to make all medical decisions on his behalf, secure appropriate housing and services, and to manage his finances.

I called my colleague Kate to incorporate her geriatric care management services into Howard’s plan. Kate and I moved Howard to an assisted living facility and put services in place to allow him to retain as much independence as possible. Even after the transition to a nursing home became necessary, we maintained companion services to provide Howard with a few hours out of the facility each week.

Kate and I have worked as a team to advocate for all of Howard’s needs, and although his dementia advanced he always knew who we were. In fact, Howard once informed the nursing home staff that he was not happy about something and assured them that “his people” were going to look into it. We were proud to serve as “Howard’s people” and so honored that he realized our role until the day he died. Although we were not “family,” we treated Howard with the respect and dignity we would demand for our own parents.

As my week went on, I was consulted by five siblings regarding their father, Bob, who they believe is being financially exploited by their sibling, Jack. Jack, as agent in the HCP and DPOA, is trying to place Bob in a nursing home contrary to Bob’s wishes and despite the fact that Bob is doing well at home with significant assistance. The reality is that Bob’s care is expensive and funds spent on his care now will reduce his children’s future inheritance. As I listen to this family’s story, it appears that Jack is not acting in his father’s best interest, not upholding his father’s wishes to remain at home and is motivated solely by his own financial gain.

ently, Bob appointed Jack over the objections of all the other children simply because he is the oldest. Jack does not get along with any of his siblings. He has had trouble managing his own finances and filed for bankruptcy in the past. Jack was simply not an appropriate choice to serve as Bob’s agent, and although Bob realized that when he executed his documents, he did not want to hurt Jack’s feelings.

To make matters worse, Bob took steps to protect his assets from the cost of nursing home care by conveying his home and assets to a trust. Yes, you guessed it – Jack is the trustee. Bob is now at risk of being mo
ved to a nursing home against his will, despite the availability of sufficient funds to provide the necessary care in the home.

The cases of Howard and Bob illustrate that poor planning is worse than no pla
nning at all. Make no mistake – the message here is not that planning is not important. It is critical to understand, however, that the primary purpose of planning and protecting assets is to ensure your own future care and security. If your intent is to remain in your home as long as possible, then your planning should reflect that.

You must appoint agents and trustees in a manner that respects your wishes, protects your security and does not leave you vulnerable in the event that relationships go bad in the future.

Howard did no planning at all, but as his Court-appointed guardian I had a duty to use his funds fo
r his benefit and to keep him in the least-restrictive environment as long as possible. In contrast, Bob’s poor planning left him unprotected because in his effort to “protect” assets, he gave up all control over his future security.

If you do not want to find yourself in Bob’s situatio
n, work with an elder law attorney to ensure that your documents include the necessary protective provisions and be willing to make the difficult decisions that are necessary to appoint agents who will hold your wishes and best interests paramount to their own.

Tags: asset protection, elder law, Legal Check Up, Legal Documents, Estate Planning, disability planning, Elder Financial Abuse, lack of capacity, undue influence, Durable Power of Attorney, Health Care Proxy, Last Will & Testament, duress

The Importance of Basic Estate Planning Documents

Posted by Judith Flynn on Mon, Sep 19, 2011 @ 21:09 PM

Most people have conducted some level of estate planning at some point in their lives. Estate planning typically involves a plan for distribution of one’s assets during life and at death. Estate planning for elders is a bit more complicated due to the natural changes that aging brings, and requires consideration of potential changes in mental or physical condition. In addition to a Will, effective planning requires that you appoint someone to act on your behalf if you become incapacitated. This is achieved with a Durable Power of Attorney (for finances) and a Health Care Proxy (for health care).  These documents grant your agent the authority to make decisions on your behalf if you are ever unable to speak for yourself. It is important that you execute these important documents while you are competent to ensure that your wishes are upheld. These documents may also help to avoid the necessity for costly guardianship proceedings in the probate court in the future if you become incapacitated. Following is a brief summary of these essential documents.


A Durable Power of Attorney grants your Agent the authority to act on your behalf in financial and related matters. A Power of Attorney is not sufficient for elder law purposes unless it is Durable, which means it remains effective after the principal becomes incapacitated. The Durable Power of Attorney must be comprehensive, enumerating many specific powers. (If you have a Durable Power of Attorney that is only a page or two long, it is probably not sufficient for many common issues elders face.) There are specific clauses that must be included in order to be effective for many common situations that elders face.  A qualified Elder Law Attorney will be able to discuss these with you and ensure that your Durable Power of Attorney will be honored by third parties (banks, brokerage companies, the Internal Revenue Service, etc.).

The most common Durable Powers of Attorney grant the Agent the right to act immediately, but they can also be drafted to grant “springing” powers to your Agent. A Durable Power of Attorney with springing powers will grant your Agent authority to act only after one or two physicians certify your inability to act on your own behalf. Unfortunately, third parties are often more cautious in dealing with documents with springing powers, so your Agent may have difficulty acting on your behalf with a springing Durable Power of Attorney.

It is important that you trust your Agent completely, and you should understand that your Agent has a legal duty to act in your best interests. If you are uncomfortable with granting immediate authority, however, there is another option. You may execute a Durable Power of Attorney that grants your Agent immediate powers to act on your behalf, but have your attorney hold the documents in “escrow” until your Agent presents proof of your incapacity. This avoids the heightened scrutiny from banks and other institutions, but affords you the added comfort and security you desire.


A Health Care Proxy grants your Agent authority to make health care decisions on your behalf, but only after you have been deemed incapable of making or communicating decisions for yourself. It is a springing power by definition. It is important that you discuss your wishes with your Agent so that they may communicate your wishes if you are not able to. Unlike a Durable Power of Attorney, your health care Agent should make decisions that you would make if you were able, rather than decisions that he or she thinks are best. Your Agent can only fulfill this duty, however, if you take the time to inform them of your wishes.

In addition, because your Health Care Proxy is a “springing” document, your document should include a clause granting your Agent immediate authority to act on your behalf under HIPAA (Health Insurance Portability and Accountability Act). HIPAA was enacted to give individuals greater protection over their medical records, but there may be circumstances in which you need your Agent to assist you regarding your medical records before your Health Care Proxy springs into effect.


Although Living Wills are not enforceable in Massachusetts, it is still recommended that you execute one as a written expression of your wishes regarding artificial feeding or respiration, invasive surgery, etc. If there is ever a dispute about your care in the future, the Court can rely on your Living Will as evidence of what you would want.  (Remember the recent case of Terry Schiavo … her husband and her parents disagreed as to whether she would want to be artificially sustained. If she had executed a Living Will, the court could have relied on it to determine what she would have wanted.)


Your Will designates who the beneficiaries of your estate will be. If you and your spouse have “Sweetheart” Wills (each of you leaves everything to your beloved spouse …), consider drafting new Wills which could protect your assets if one of you requires nursing home care. There are strategies you can employ that will ensure that your spouse benefits from your estate if you predecease him or her, without leaving your estate vulnerable to the cost of nursing home care. In addition, if you have a disabled child you will want to make specific provisions in your Will to provide for that child without causing a disqualification from any public benefits he or she is entitled to.

So, dust off that old estate plan and give it a fresh look since your situation has probably changed significantly since you last reviewed it. If you have never done any estate planning documents, now is the time. Take greater control of your future -- call us at 781-681-6638 to schedule a Legal Check Up.

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