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Legal Notes

Attorney Pamela OddyAttorney Pamela OddyThe most difficult question that I often ask my clients when drafting an estate plan is not a legal question. It is a personal one; it is an emotional one. The question starts with the phrase “Are you ready . . .” and then is followed by “. . . to turn your house over to your children?”  Or “. . . to have your son or daughter make medical treatment decisions for you?” Or “. . . to let your son or daughter begin the process of taking control of your financial assets?” These questions are not really legal in nature but, rather, they are designed to ferret out whether or not the clients are ready to begin an estate plan that encompasses the gradual turning over of assets and control to the next generation.

A gift or outright transfer made outside of the five year look back period is not considered when applying for MassHealth benefits.

One of the biggest reasons to ask this question of readiness is because of the five year look back when it comes to MassHealth applications to pay for nursing home care. A gift or outright transfer made outside of the five year look back period is not considered when applying for MassHealth benefits. Therefore, it is always better to try to have the transfers and gifts made as early as practical. Hence the question: “Are you ready?”

Sometimes, the response I receive from my clients is very illuminating. For example, one spouse could respond by saying that she/he is absolutely ready to turn the house over to their children and has been ready for quite some time. The other spouse, however, has a different response because he/she is not ready, either to give up control, or to share control with their children. Sometimes, there may be an issue with a child as to divorce or a pending lawsuit or recent bankruptcy which gives the parent pause to turn over the house to the children (a trust might solve this issue). More often than not the reason the parent is not ready is because he/she is not ready to share control or give it up entirely. Fear of losing control is a huge factor in making these decisions. 

If no decision is made with the house, for example, it may be too late to make any kind of a transfer when faced with one of the spouses entering a nursing home because of the five year look back requirement. It is always better to make these decisions to transfer assets earlier rather than later.

But the answer always boils down to the question that begins with “Are you ready . . .?” So I ask my clients “Are you ready? What are you ready to do?” The estate plan lies within the clients’ response.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at 413-773-9839 or the Worcester County Bar Association at 978-752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640. Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting communitylegal.org.

Attorney Seunghee ChaAttorney Seunghee ChaAs a trusts and estates attorney, I often work with families of divorce who are facing the challenges of aging parents. The divorce rate peaked in the U.S. between 1960 and 1980. Many people who divorced went on to remarry. They are now in their 80s and 90s, and some have an increasing need for assistance with the daily, medical, and financial aspects of their lives.

When a spouse in a second marriage loses the capacity to exercise good judgment, stepchildren can be thrust into difficult situations: What if one spouse needs care and the other refuses help? Or only one of them can move in with a child—who lives in another state? How do you bridge the financial disparities when one spouse’s care becomes costly? These challenges are more complicated in blended families.

Good planning and early intervention establishing boundaries and clarifying roles can help families manage stress and solve problems.

Good planning and early intervention establishing boundaries and clarifying roles can help families manage stress and solve problems. Here are some key issues to address:

  1. For each spouse, who is named to serve as the agent under the Health Care Proxy? Is the Health Care Proxy in effect? Is it time to invoke the Health Care Proxy?
  2. For each spouse, who is named to act as an agent called “attorney in fact” under a Power of Attorney? What powers and limitations do they have? Should they be compensated?
  3. If different agents serve for each spouse, how and when must the agents coordinate with each other?
  4. Which assets do you own jointly with your spouse? With children?
  5. What are the expenses, sources of income, and assets?
  6. Do you have a prenuptial or postnuptial agreement? Who inherits when one of you dies? When both of you are deceased? What are your children’s expectations?
  7. Are any of your children or grandchildren receiving financial assistance or being paid to assist you? Does your family know?
  8. Are there potential conflicts of interest between you and your spouse or among the children?
  9. Does your spouse pose an emotional or physical threat to you?
  10. Do you all get along?

Answers to many of these questions are essential to delivering and financing proper care and protecting your privacy. If you wait until crisis strikes, you and your family can be vulnerable. For elders who still have the capacity to settle their own affairs, with legal guidance and thoughtful planning you can prepare your family to communicate with each other more effectively and create the right team of people to advocate for you.

Attorney Lisa L. HalbertAttorney Lisa L. Halbert, Northampton, 413-584-1287As I sit to write this article, I am considering: what would I, as a reader, want to know that might not seem terribly obvious...but can be useful if considered?

Typically, most spouses automatically name the other spouse as a beneficiary, whether on life insurance, individual retirement accounts, and/or annuities, and never revisit the designations. Most people want to know that the surviving spouse will be provided for upon the death of the first to die. But consider this: If, upon serious reflection, you knew that your spouse was no longer going to be able to safely reside in the marital home or marital apartment alone and without you present, would you still leave the surviving spouse those same monies?

For example, spouses Alex and Pat have lived in the community for decades, and appear to be happy and healthy. The reality, however, is that 60 years into their marriage, where Alex is healthy as a horse, Alex has also become a caretaker to Pat. Pat cannot safely cook, might be very confused if there was a fire, and might not really know how to call emergency services should the issue arise. We all know someone like Pat. You know, that person who when a question is asked provides a very friendly response, but upon second or third thought the response is quite non-committal and vacant. Alex, having lived with Pat for decades and done some soul-searching, is absolutely confident that if something were to happen to Alex, Pat would likely need to move into a long term care facility or nursing home. And in fact, this same conversation has occurred between Alex and Pat’s doctor.

If, upon serious reflection, you knew that your spouse was no longer going to be able to safely reside in the marital home or marital apartment alone and without you present, would you still leave the surviving spouse those same monies?

If Alex keeps Pat as the designated beneficiary on all accounts (such as life insurance, individual retirement, and/or annuities) and Alex unexpectedly dies first, then all of these same monies would be paid to Pat. If Pat then requires nursing home care, it is quite possible that much of these same monies might be paid for care in a nursing home, and not really available to Pat to spend as desired. Under these circumstances, perhaps instead of leaving funds to Pat, Alex might want to consider changing the designated beneficiary and leave the same funds to other family or friends, or perhaps even a non-profit such as LifePath, or other similar organization. (Or split the designation with some percentage left to Pat and the balance left to other/s.) Maybe if other family members are named, those individuals might decide to make some monies available for Pat to have a few indulgences without risking all of the monies. (There is no guarantee that family members will do this, so please think about your own situation and evaluate it.)

Is this appropriate in every case of a beneficiary designation? Absolutely not! But trust your instincts and periodically consider the consequences of your beneficiary designations.

Attorney Lisa L. Halbert practices law with the regional firm of Bacon Wilson, P.C. Lisa focuses her practice on all aspects of asset protection, including estate, tax, and long-term care planning, together with matters related to trusts and estates, probate, guardianship, and conservatorship. Lisa works primarily from Bacon Wilson’s Northampton location, and may be reached at 413-584-1287, or via email at This email address is being protected from spambots. You need JavaScript enabled to view it..

The views expressed in this column represent general information. To address your particular and specific needs, consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits, as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.

tipped glass jar with bow spilling out penniesSome seniors desire to help close family members by giving them their valuable assets or sizable monetary gifts. Maybe there is a desire to help a family member financially by giving cash, or by paying for college. Sometimes seniors ask me if it is true that they are allowed to give gifts of up to $15,000.00 per year and still be eligible for the MassHealth payment of nursing home care. The answer is always “no.” The $15,000.00 per year allowable limit of gifting pertains only to the IRS federal gift tax code. That gifting allowance amount has no relation at all to the MassHealth regulations. MassHealth is the state health care program for low income individuals that also pays for long term nursing home care for eligible low income individuals with an asset limit of $2,000.00. It is a very common misconception. The federal gift tax code allows taxpayers to make yearly gifts of up to $15,000.00 before requiring a gift tax return filing (but not necessarily payment of taxes for non multi-millionaires) of a federal gift tax return. MassHealth rules for financial eligibility for payment of nursing home care do not allow any gifts (unless in very strict limited circumstances to only a couple of specific individuals) within the five years before applying for MassHealth. In other words, although giving gifts of up to $15,000.00 value would not be a federal taxable event for federal gift tax purposes in most cases; any gifts given or assets given away for less than fair market value of a sizable amount could for most people be a disqualifying transfer of assets for MassHealth payment of needed nursing home care purposes, and the MassHealth application could be denied unless it was given back.

Sometimes seniors ask me if it is true that they are allowed to give gifts of up to $15,000.00 per year and still be eligible for the MassHealth payment of nursing home care. The answer is always “no.”

Most gifts given are intended only for the best reasons, and not given to remove assets from the estate only to be eligible for MassHealth. Seek legal advice before wanting to give away assets or monetary gifts. Wanting to help out a close family member financially by giving sizable cash gifts or valuable assets, if gifted prior to five years before applying for MassHealth benefits, could likely cause a disqualification of needed care. A majority of people need not be concerned about the federal gift tax annual exclusion of filing a gift tax return because it doesn’t affect them, but many people need to be aware of the MassHealth five year look back period of gifting assets for less than fair market value. See an elder law and estate planning attorney for the best advice for your specific financial situation.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640. Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.

Pam OddyAttorney Pamela OddyRecently, I had a routine wellness exam with my primary care physician. During the course of the meeting, my doctor introduced me (from the patient's perspective) to the MOLST. A number of my clients have provided me with copies of their completed MOLST forms for my files, so I was already acquainted with the form.

MOLST stands for Massachusetts Order of Life Sustaining Treatments. It is double-sided, and it asks health care questions such as whether or not you want to be intubated or fed by artificial means or resuscitated or go on dialysis. The MOLST form is on hot pink paper and is an important part of a person's arsenal in directing health care treatment. lt is done in conjunction with one's doctor so that the specific medical issues may be discussed as to what exactly these questions may entail.

Hospitals and doctors’ offices have Health Care Proxy forms that may be given to patients upon request.

At the same meeting, my doctor asked me for a copy of my Health Care Proxy for his file. Whereupon it prompted me to examine the documents I had drafted for myself. I found that I had not updated my Health Care Proxy in the last 21 years. My children were not mentioned on my Proxy as decision-makers because they were so young, or not yet born, at the time I signed that form. I immediately redrafted the Proxy to include my children (after my spouse) as designated choices to make medical treatment decisions for me should I not be able to speak for myself or direct my own health care. I also took advantage of the opportunity to update my Will and Durable Power of Attorney, but that is the subject of another article.

Hospitals and doctors' offices have Health Care Proxy forms that may be given to patients upon request. They are simple forms to complete and, once completed, copies should be given to the person's primary care physician as well as to the estate planning attorney. Hospitals and nursing homes have frequently called my office, for example, requesting a copy of a particular patient's Health Care Proxy. When l draft Proxies for my clients, I will routinely make multiple copies on lime green paper so that they may be spotted easily in a medical file and I will direct my client to hand out those green copies not only to the people named as decision makers on the Proxy but also to my client's primary care physician.

Everyone would be well advised to have a Health Care Proxy as part of one's estate planning documents.

The views expressed in this column represent general information. To address your particular and specific needs, consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, online or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters, with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online.