The Legal Checkup Blog

The Massachusetts Bar Association invites you to participate in Court Advocacy Day on Monday, March 19 at the Grand Staircase inside the State House. Beginning at 11 a.m., the event will help reiterate the need for adequate funding to sustain the critical needs of the Massachusetts Court System. The event will open with a brief speaking program, after which attendees will be encouraged to meet with their local legislators.

The event will include speaking remarks from:

•Supreme Judicial Court Chief Justice Roderick L. Ireland;

•Chief Justice for Administration and Management Robert A. Mulligan;

•MBA President Richard P. Campbell; and

•Boston Bar Association President Lisa Goodheart

The MBA would appreciate your signing up in advance at http://www.massbar.org/cle/cle-programs?p=2709

You can sign up in advance to meet with your legislators, or just drop by their offices.  The MBA will provide informational packets at the event that include fact sheets on court funding that you can leave with your legislators.

For your convenience, you can find the list of Senators at:

http://www.malegislature.gov/People/Senate

and the list of Representatives at:

http://www.malegislature.gov/People/House.

Deb Thomson and some members of the MassNAELA Board of Directors will be at the event to offer guidance to MassNAELA members in attendance.  We hope to see many of you there to support funding for the Massachusetts courts!

Follow this link to a video and other resources to learn more about the judicial system's response to the underfunding crisis.   

http://www.massbar.org/about-the-mba/initiatives/court-funding

The Massachusetts Department of Revenue (DOR) allows a refundable tax credit for qualifying home owners and non-subsidized renters aged 65 and over, called the "Circuit Breaker."  This tax credit can be significant and is available to seniors (65+) whose property taxes (or 25% of rent) exceed 10% of their annual income and who meet other criteria for the program.

Seniors do not need to owe income taxes in order to file for this credit, but they must file the required state tax form and Schedule CB to calculate the credit.  Call the Massachusetts DOR at 617-887-6367 for more information, or go to www.gov/dor to download the necessary forms.  Your accountant should also be able to assist you (or, dare I say, you might consider getting a new accountant)!

BEWARE:  Residents of public housing are not eligible for this tax credit.  If you reside in public housing, the DOR warns you not to fall victim to the scam of unscrupulous tax preparers who want to charge you a fee for their assistance in applying for the credit.

Hot off the press from the State House News Service:

The Patrick administration has struck a $26.75 billion deal with the Obama administration that the governor says will set the stage for a "new round of innovations" in Massachusetts's health care system and that federal officials say will serve as a precursor to sweeping changes in the way health care is delivered in the Bay State.

The deal, a three-year Medicaid pact authorized by the U.S. Department of Health and Human Services, represents a $5.69 billion, 26.2 percent increase over the last three-year deal, which was approved by the administration of President George W. Bush in 2008. The last waiver deal, a three-year pact approved in 2008 by the Bush administration, was valued at about $21.2 billion and hailed as a victory for state health programs by Gov. Deval Patrick and U.S. Sen. Edward Kennedy.

The new deal was reached last week when Patrick met with U.S. Secretary of Health and Human Services Kathleen Sebelius in Washington D.C., and details were finalized in the days since the meeting, according to an administration official.

MassHealth, the state's Medicaid program, provides 1.3 million low-income or disabled Massachusetts residents with subsidized coverage and has been a major part of the state's efforts to provide near-universal coverage.

Under the terms of the deal, also known as a Medicaid waiver, safety net hospitals in Massachusetts - including Boston Medical Center and Cambridge Health Alliance - will be required to make major changes to the way they deliver health care in order to access a $120-million-a-year pot of funds. The changes include moving away from a health care system that pays doctors based on the volume of tests they perform, rather than the health outcomes for their patients.

Gov. Patrick has pressed lawmakers to act on a bill that would make this shift the norm in the Massachusetts health care industry, but the Legislature has deferred action until next year. 

Under the waiver, Massachusetts will establish a pilot program aimed at expanding coverage for pediatric asthma services. This provision of the waiver closely mirrors a Medicaid program adopted in a state budget 18 months ago aimed at preventing unnecessary hospital admissions for pediatric asthma patients. The state will also "streamline eligibility procedures" for about 140,000 parents with children who receive food stamps, and the waiver also covers expanded "early intervention" services for children with developmental delays and disabilities.

Massachusetts officials also withdrew a number of requests, according to the federal Centers for Medicare and Medicaid Services, which sent a letter to Patrick administration health and human services chief JudyAnn Bigby. The withdrawn proposals include integrated care for residents eligible for both Medicare and Medicaid, which the Patrick administration plans to tackle independently.

The administration had also requested the ability to increase pharmacy co-pays "above allowable State plan levels" and to institute a co-pay for non-emergency medical transportation," according to the letter. The Medicaid waiver, a critical element of Massachusetts health care financing scheme, was due to be finalized in July, but negotiators sought a series of one-month extensions, unable to reach agreement as news of major pressure to cut federal spending dominated the dialogue in Washington.

Proponents of the deal said it would preserve the state's health care programs established in 2006, when Gov. Mitt Romney signed a health care law intended to guarantee access to insurance for nearly all Massachusetts residents. Since the law was signed, about 411,000 previously uninsured residents obtained health care coverage, and the Patrick administration estimates that 98 percent of all residents are insured. The cornerstone of that legislation, a health insurance exchange called Commonwealth Care, served as a model for exchanges included as part of the federal Affordable Care Act signed by President Obama nearly two years ago. Commonwealth Care helps enroll low-income residents in heavily subsidized private insurance plans. Commonwealth Care and a separate program that covers care for a diminishing pool of uninsured residents will receive $500 million a year, under the new waiver deal.

The Patrick administration has also committed to implementing all provisions of the Affordable Care Act by Jan. 1, 2014, when most major provisions of the federal law take effect. The waiver may carry some political significance heading into a presidential year, as Romney campaigns for the Republican nomination to take on President Obama. Romney has repeatedly been forced to defend the health care law he signed as an affordable plan that works for Massachusetts. But critics say the state's programs survive because of a broad lifeline provided by the federal government, a critique unlikely to be quelled by the major increase in Medicaid funding announced Tuesday.  

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/

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/

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 www.socialsecurity.gov/pressoffice/pr/ss-expands-compassionate-allowances.html

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.

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

A great decision just came down from The United States District Court for the District of Vermont in the class action lawsuit known as "Jimmo" vs. Kathleen Sebelius, Secretary of Health and Human Services.  The Defendant's Motion to Dismiss the case for Failure to State a Claim was DENIED.

For more details, go to www.thelegalcheckup.com/legislative-alerts/ 

SOCIAL SECURITY ADMINISTRATION ANNOUNCES 3.6 PERCENT BENEFIT INCREASE FOR 2012

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 www.Medicare.gov.   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 <http://www.socialsecurity.gov/cola>.