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Legal Notes

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.

Seunghee ChaAttorney Seunghee ChaMany people want to avoid probate without realizing what it is or that it has benefits. Thorough estate planning involves a careful evaluation of whether avoiding or minimizing probate is desirable.

Probate refers to a court process for overseeing (i) the appointment of the personal representative (aka “executor”), (ii) the determination of the validity of a decedent’s will, (iii) the identification of heirs of the estate, (iv) the marshalling of assets held in the name of the decedent, (v) notice to creditors of the estate, and (vi) other property issues arising at death.

A few advantages of probate:

Legal notice. The publication required in probate gives creditors one year (in Massachusetts) from the date of death to make claims against the estate. For estates facing creditor problems, the deadline offers finality and protection.

Court oversight. Judicial involvement of the administration protects interested parties from possible mishandling of the estate by the personal representative. Many people can trust a family member acting as personal representative to administer the estate properly. In some situations, however, inventory and accounting requirements provide much-needed transparency.

The major disadvantages generally associated with probate are public disclosure of assets in the decedent’s name and the expense of the probate process. However, such disadvantages are mitigated by various factors. Consider:

Privacy. While assets in a decedent’s name often must be disclosed, life insurance proceeds, joint assets, and IRA and 401(k) benefits, which typically constitute the bulk of a decedent’s assets, are normally not disclosed because joint property and property passing under contract by beneficiary designation are not subject to probate.

Cost. Under the Massachusetts Uniform Probate Code, in effect since March 2012, the probate process is streamlined to allow less formal, more user-friendly administration options. Consequently, the cost of probating an estate in Massachusetts often is much less than in many other states and should not be the reason for deciding whether or not to avoid probate.

The major disadvantages generally associated with probate are public disclosure of assets in the decedent’s name and the expense of the probate process. However, such disadvantages are mitigated by various factors.

Strategies for avoiding probate include adding a joint owner to your property and establishing a trust and titling ownership of assets to be held in the trust. These actions incur cost and can result in loss of control, disposition of assets to unintended beneficiaries, and adverse tax consequences.

Probate is often misunderstood and unnecessarily feared. A good estate plan involves education to help individuals and families make informed decisions to meet their personal needs—which may not involve avoiding probate.

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.

Attorney talking with clientLifePath supports Community Legal Aid (CLA) in providing free legal services to residents of Franklin County and Athol, Petersham, Phillipston and Royalston in Worcester County who are age 60 and over. We want you to know more about these services and how to access them. This help is available because the federal Older Americans Act provides funding to the state Executive Office of Elder Affairs for civil legal assistance throughout Massachusetts, and some of that money goes to LifePath, which then provides a grant to CLA.

Because the funding isn’t enough to allow us to provide full representation in response to each request for legal assistance, we are only able to assist with certain types of legal problems. The areas in which we are more likely to be able to provide advice or other assistance include: denials or terminations of MassHealth; housing matters (such as evictions, and denials or terminations of rental subsidies); denials, terminations or reductions of public benefits (such as unemployment insurance, SNAP/Food Stamps, Social Security/SSI/SSP, and state veterans services or ch. 115 benefits); and coverage denials and enrollment issues with Medicare. We also work with elders seeking assistance with issues of autonomy, abuse and exploitation.

In addition to looking at the type of problem for which our assistance is being sought, we try to determine the seriousness of the elder’s situation to ascertain whether we will provide a phone consultation to the caller; provide some level of legal assistance, which could involve representation in court proceedings; initially investigate the situation further on behalf of the elder before determining the role we can play; or provide some referral information, if possible. Low-income elders with family law matters such as divorce would be referred to our family law unit for a case acceptance decision and those seeking assistance with bankruptcy would be referred to our Volunteer Lawyers Service for free assistance from an attorney in private practice.

CLA is open for telephone-assisted screening Monday, Tuesday, Thursday, and Friday from 9:30 am to 12:15 pm, and Wednesday 1:30 pm to 4:15 pm. Elders may call toll free at 1-855-252-5342. CLA also has an online application on its website, which can be accessed at any time. Elders can also go to the Massachusetts Legal Resource Finder website, which identifies what types of legal problems are appropriate for referral to CLA. The Legal Resource Finder can also help elders locate additional resources on a wide variety of legal topics.

We at Community Legal Aid look forward to assisting you with your legal questions and concerns. We accommodate clients with mobility and transportation challenges by meeting with them in our satellite office in Greenfield or in their home, medical facility, or in another mutually convenient location.

Attorney Lisa L. HalbertAttorney Lisa L. Halbert, Northampton, 413-584-1287A friend of mine recently referred to estate planning attorneys as “professional pessimists.” As a self-described cheerful person, it stung a bit to be called a pessimist. But while the remark wasn’t personal, it was accurate. In fact, the more I thought about it, the more I realized that we estate planning attorneys would do well to consider our “pessimism” a vitally important part of our profession.

It’s true, we ask clients hard questions. We ask about illness, we ask about end-of-life, we ask about finances, family relationships, hopes, dreams, and expectations. Then, we work to plan for preferences and likely circumstances, while simultaneously trying to anticipate and plan for the unexpected.

A properly drafted Durable Power of Attorney document is one of the most important elements of estate planning. New clients often tell me they do not want Durable Powers of Attorney, because all their assets are jointly owned. While joint ownership of assets is sometimes desirable in estate planning, such designations do not replace the authority of a Durable Power of Attorney, which allows for transfers during lifetime.

Consider this common pattern: Two spouses are married and own their home. They want their estate plan to provide for the survivor between them, and then for their children. They also want to avoid spending their savings on end-of-life care. One spouse is older and ill, with the other spouse providing care for the first. They ask for Wills leaving all their assets to each other.

But I, now a Proud Professional Pessimist, must protect them by playing the “what if” game. What if the older spouse needs a nursing home? What if the younger spouse happens to die first? Without the proverbial “crystal ball” to tell us exactly what will happen and when, we run the risk that either or both spouses may require expensive (and potentially long-term) care in a nursing home setting, thereby jeopardizing assets they had hoped to leave behind for their children.

In a situation like this, the flexibility of the Durable Power of Attorney document is invaluable. The Agent named in a Durable Power of Attorney has the ability to transfer any and all assets, including the spousal home. Additionally, a properly drafted Durable Power of Attorney will allow the Agent to act quickly and in real time, as specific needs arise. Depending on each unique situation, this may mean transferring assets to or away from a spouse with a terminal illness, or in some cases transferring assets directly to children or loved ones.

These procedures are not appropriate for every situation, and naming an Agent to take charge of family assets requires very careful consideration. But when illness or infirmity strikes, and minds or bodies might no longer be capable, the Durable Power of Attorney document offers important protections.

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.