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Legal Notes

Attorney Pamela OddyAttorney Pamela OddyLately, I find myself settling multiple estates in which the decedent wrote his/her own will. In each case, I do not know what the motivating factor was in not consulting a lawyer for this service. Was it a desire to save money on a lawyer's fee? Was it because they did not trust lawyers? Or was it because they felt that their last wishes were really simple and straightforward and, therefore, there was no need to consult a lawyer? Whatever the motivation to avoid hiring a lawyer to draft a will, the members of the family left behind are now paying a rather high price.

In one estate that I am settling, the decedent hand wrote his own will. In another estate, the decedent used a form that he retrieved from an online source. In the third case, the decedent copied a friend's will and adapted it to his own purposes and left out clauses that he either did not understand or thought to be irrelevant. All of these wills had one thing in common: They omitted very valuable clauses that are designed to make it easier and cheaper to settle an estate.

Whatever the motivation to avoid hiring a lawyer to draft a will, the members of the family left behind are now paying a rather high price.

A common denominator of these "do it yourself'' wills appears to be the omission of a clause that gives the personal representative of the estate the authority to sell the real estate without obtaining permission from the probate court. The technical name for the clause is "Power of Sale." lf this clause is omitted from the will, it forces the personal representative to petition the court to obtain permission to sell the real estate. The petition takes time to be prepared because of all the supporting documents that it requires before submission to the court. During this pandemic, the court is extremely slow and it is not uncommon for this petition to take 4 to 6 weeks to be prepared, submitted, and approved. In the meantime, the buyer might walk away from the sale because it is taking too long or the buyer might lose his mortgage interest rate lock. In addition, creditors who are dependent upon the sale of the house for their payment such as plumbers, contractors, or electricians who may have had to put substantial work into the house to make it saleable are out of luck. The cost of the petition is $250 just to file with the court. On top of that fee, the lawyer also charges for preparation of the petition and also for the supporting documents that the petition requires. All of these problems can be avoided if a lawyer is the one to draft the will.

In another estate I am settling, it has taken over one month to obtain the court’s authority to sell the real estate. I am sure that the pandemic has slowed down the court's response. However, in the meantime, the buyer has lost his interest rate for his mortgage and the sale has had to be extended.

The bottom line is that if the person who drafted his own will thought he was being smart not to consult a lawyer, then he would most certainly be horrified to know that if a lawyer had drafted his will, it would have saved the estate at least $1000, if not more. This is a perfect example of being penny wise and pound foolish.

audrey hepburn 63115 1920Almost 30 years ago, on January 20, 1993, the elegant and talented actress Audrey Hepburn passed away.  When she died she had an estate plan in place that seemingly took care of everything, so that her wishes for the distribution of her estate would go smoothly after her death.  According to a Daily Mail article by Amanda Ulrich from March 2017, Audrey Hepburn had one clause in her Will that left all of her personal memorabilia from her movie career to her two sons from separate marriages in equal shares. She did not name which of her two sons would receive specific articles from her collection.  By not specifying which son was to receive specific items, her sons could not come to an agreement as to the distribution, and ended up in litigation over her estate.

By not specifying which son was to receive specific items, her sons could not come to an agreement as to the distribution, and ended up in litigation over her estate.

For over twenty years after her death, her two sons were unable to agree on the equitable distribution of her personal property, and began court proceedings in 2015.  In 2017, her sons finally agreed to mediation of their dispute over their mother’s personal property prior to a court trial.  Audrey Hepburn could have prevented this expensive and very long-term dispute by either specifically naming which items she wanted to go to each son, or by requiring mediation if her sons could not agree on how to distribute the property.  She also could have required that if there was any dispute over the distribution that the property should be sold and the proceeds from the sale be distributed equally to her sons.

Estate matters can be complicated in some cases, and can be even more complicated when the deceased has children who are half-siblings.  Arguments over a deceased’s personal property, whether they have monetary value or have only strong sentimental value, can cause irretrievable breakdowns in family relations.  This can be avoided by stating exactly who is to receive particular personal items either in the Will itself, or by an attached signed and dated memorandum to the Will for items of low monetary value, or by requiring mediation if there is any dispute.  If there is any possibility that there could be future problems with certain items or if there are items of value, listing them in the Will itself is the safest bet that your wishes will be fulfilled and to ensure family harmony as much as possible.  Audrey Hepburn created a good estate plan, but did not anticipate that her sons would fight over her personal memorabilia.  The lack of specificity regarding distribution of her personal property caused unintentional feelings of unfairness between her sons, and unnecessary litigation costs.

Attorney Seunghee ChaAttorney Seunghee ChaDespite the legalization of recreational marijuana in Massachusetts since December 2016, with now more than 60 dispensaries throughout the Bay State, the law for medical use of marijuana is still relevant and particularly important to older people.

Under the Massachusetts Act for the Humanitarian Medical Use of Marijuana, in effect as of January 2013, qualifying patients can obtain a physician’s certification if they have debilitating medical conditions for which the potential benefits outweigh the health risks. With age, the proclivity to chronic illness increases, making many older adults good candidates for this treatment, which is used to alleviate symptoms of cancer, MS, ALS, Parkinson’s disease, chronic pain, insomnia, and arthritis, among others. Reports indicate that medical marijuana reduces the use of opioids and other prescription medications. It can even be a cheaper alternative.

For qualifying patients, the law permitting medical use of marijuana provides better benefits than the law legalizing recreational marijuana.

For qualifying patients, the law permitting medical use of marijuana provides better benefits than the law legalizing recreational marijuana. Cardholders of medical marijuana can purchase larger amounts and products with a higher concentration of the psychoactive component of cannabis. They can also cultivate more plants (up to 60 days of supply) for their own use. Furthermore, they do not pay tax; recreational users are charged the normal 6.25% sales tax + 10.75% excise tax (and up to 3% in additional sales tax in some localities). For patients who can verify financial hardship, medical marijuana treatment centers must offer reduced cost.

If you are a caregiver, you must be registered with the Commonwealth’s Medical Use of Marijuana Program in order to accompany a cardholder to a dispensary or to purchase, transport, administer, or cultivate marijuana on their behalf. It is common for family members to be caregivers: you need to be registered for each cardholder—for example, if you are caring for both parents.

Proponents of medical marijuana are advocating to end the persistent stigma of its use, including within the medical profession, and to strengthen the existing law. Currently when certified patients are hospitalized, the institution can deny the patient’s use of medical marijuana within its facility.

Medical marijuana is not without controversy. Research shows a correlation between the use of marijuana and a decline in cognitive functioning. Under federal law marijuana is still an illegal substance. Health insurance companies do not provide coverage, and the cost of medical marijuana does not qualify as a deductible medical expense.

Yet, according to health care professionals and dispensaries, interest is strong among older people. Medical use of marijuana has become a recognized treatment option for managing many debilitating conditions and delivery of palliative care. Understanding the regulation of this burgeoning industry is now an important part of patient education and advocacy.

Attorney Pamela OddyAttorney Pamela OddyMost couples that I work with to create an estate plan have chosen not to share their finances with their children. When to tell children about a parent’s finances is tricky at best. There are many times that I receive telephone calls from a worried and frightened adult child stating that his/her parent has just had a massive stroke or has just been diagnosed with Alzheimer’s and the child hopes that I have a record of the parent’s finances. The parent’s lawyer is not always a good place to turn for this information because the parent might not have seen or talked to the lawyer for many years, making any financial information gathered during the will interview obsolete. Oftentimes, the child does not even know what bank holds the parent’s checking account or if the parent has certificates of deposit or if the parent has investments of any kind and where they are.

When to tell children about a parent’s finances is tricky at best.

Sometimes, there is an immature or troubled child that makes the parent reluctant to share any knowledge about finances. Sometimes, the parent is involved in a second marriage with children from both marriages, which makes it quite complicated to explain anything about finances. And sometimes the parent just does not want to share anything, instead keeping everything private.

The bottom line is that there is no magic time to share your finances with your children, but here are some suggestions to help you determine when is the right time to open up and sit your children down and explain what’s what and also what’s where:

1. Make a list of your assets, similar to a spreadsheet, that contains the name or names on each asset and where it is. For example, list all bank accounts separately and put the account number and bank where these bank accounts are. A good idea is to update this list every year—make it a New Year’s resolution to redraft the list. If there are no changes, fine, but if there are changes, make sure they are noted on your list. Be sure to tell your children where they can find the list. What good is making out the list if no one knows where it is?

2. Tell your children who your lawyer is and also who your financial advisor is. Often, the financial advisor will have information on investments or mutual funds or stock portfolios that your children would have no way of knowing. The lawyer just might be holding the parent’s original will and powers of attorney.

3. Perhaps hold a family meeting so that you can explain a.) where your list is; b.) why you chose one child over another to be your power of attorney and personal representative (formerly known as “executor”) of your will; and c.) what your end of life medical decisions would be if you were not mentally able to make those decisions.

This information is designed to allow and facilitate the child to help the parent when the parent is no longer able to make decisions. It is not a time to let the child guess what assets the parent has or wonder if the parent has any life insurance or suspect that the parent has pre-paid the funeral or surmise that the lawyer is holding the parent’s original will. The end of life is not a time to be doing any of these things because it could actually result in prohibiting the child from helping the parent just when the parent really needs the help. The timing of sharing the parent’s finances with a child is a moving target and cannot be prejudged as to when is the best time, but, at some point, it absolutely needs to be done.

Attorney Seunghee ChaAttorney Seunghee Cha“When I am an old woman I shall wear purple/With a red hat which doesn’t go, and doesn’t suit me . . .” Penned in 1961 by the English poet Jenny Joseph at age 29, Warning is hailed as the most popular post-war poem in the UK. The poet muses about making up for the sobriety of youth: going out in slippers in the rain, picking flowers in other people’s gardens, and eating only bread and pickle for a week.

Caring for a loved one is a difficult balancing act between empowerment and protection.

The truth is, we would be alarmed to see our loved one behave so, with labels such as dementia, self-neglect, and elder abuse. Warning is used in trainings of professionals, including doctors and attorneys, who serve elderly people with diminished capacity. 

Caring for a loved one is a difficult balancing act between empowerment and protection. Families often lack basic knowledge about complex capacity issues they encounter. A better understanding will help identify planning opportunities and the right time for intervention. 

Here is a brief summary of general legal standards of capacity for common transactions and decisions: 

First, the most fundamental tenets: Legal adults are presumed to have capacity until proven otherwise; you have the right to make bad decisions.   

Testamentary capacity: You know the natural objects of your bounty and understand the nature and extent of your property, and you can interrelate such knowledge and understanding to create a rational plan to dispose of property. The ability to manage all your affairs is not necessary; you need the requisite capacity only at the time of executing the will—not before or after. 

Contractual capacity: You understand the nature and effect of the business transaction. If the transaction is complicated, a higher level of understanding is necessary.

Durable power of attorney: The requisite capacity to appoint an agent to handle your financial and legal affairs is the same as contractual capacity. 

Health care decisions: You understand the benefits and risks posed by a medical treatment and alternatives to the proposed treatment, and you can communicate your decisions.   

Donative capacity: You understand the nature and purpose of the gift and the extent of property to be gifted, and you know the natural objects of your bounty and the effect of the gift. 

Capacity to convey real estate: You understand the nature and effect of the transfer at the time of executing the deed. 

Clinical assessments must consider the specifics, nuances, and temporality of one’s capacity; appreciating the multifaceted nature of the ability to manage one’s own affairs is essential to self-determination and compassionate caregiving. 

Ms. Joseph died in 2018. Her beloved poem has inspired the Red Hat Society, for women over 50 to explore the power of fun and friendship.