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Legal Notes

Attorney Seunghee ChaAttorney Seunghee Cha; Bulkley, Richardson and Gelinas, LLP; Hadley, MA; 413-256-0002Most people own digital assets and conduct business online. In this digital era, it is necessary to plan for proper access, management, and transfer of digital assets in the event of incapacity and death. 

Given the legal uncertainties, it is important to be proactive about the administration of your digital assets.

Digital assets are electronic records in which you have a right or interest. They may be stored on a computer, smartphone, memory cards, or online in the cloud. The definition does not include any underlying asset unless the asset is an electronic record. Typical examples of assets that may take the form of “digital assets” are documents (word processing, PDFs), photos, videos, emails, music, information on Facebook, bank and investment accounts, IRS e-filings, crypto-currency, and domain names. 

Why should you have a plan?   

  • Help your family and fiduciaries: Providing information about your digital assets and authorizing access minimizes the burden and cost of handling your affairs.
  • Prevent financial losses: Digital assets may be lost if not discovered and properly marshaled.
  • Preserve family mementos: Your photos, letters, and blogs contain family memories and history.
  • Safeguard against identity theft: During incapacity and even after death, your personal information must be protected.  
  • Protect your privacy: You may possess data not intended to be preserved and may need to designate someone to destroy it.

Unfortunately, existing laws and industry practices pose challenges to planning. Service agreements usually prohibit access to your account by others. Some laws permit authorized persons access but deny their ability to manage and distribute digital assets.   

To address these challenges, many states passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) (2015). The statute defers to the owner’s intent, gives preferences to online tools for designating authorized users provided by custodians, grants access to fiduciaries affirmatively authorized by the owner, and upholds service agreements absent any online tool or affirmative record by the owner. RUFADAA was introduced in Massachusetts but has not passed into law. 

Given the legal uncertainties, it is important to be proactive about the administration of your digital assets. Here are some suggestions: 

  1. Create an inventory of digital assets and instructions.
  2. Designate authorized persons access if permitted by the hosting company.
  3. Grant fiduciaries in your estate plan (agent under a power of attorney, personal representative under the will, trustee) access and administration powers.
  4. Back up your digital assets. If you have crypto-currency, provide the private key to a trustworthy relative or fiduciary—otherwise it may be lost forever.
  5. Explore online storage services—beware that some may not comply with applicable laws and may not guarantee service.

Whether they have monetary or sentimental value, digital assets are an integral part of your life. Good planning will ensure their preservation for you and your beneficiaries.

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.

Cha color 1Attorney Seunghee ChaAre you concerned about the driving abilities of an older driver?

Although age is not a decisive predictor of poor driving skills, the aging process can cause impaired vision and hearing, and slower reflexes.

Health care providers and law enforcement officers may voluntarily report a driver to Medical  Affairs if they have good faith, reasonable belief based on personal observations, or physical  evidence that the driver has cognitive or functional limitations to operate a motor vehicle safely.

The Medical Affairs department of the RMV sets forth minimum physical qualifications for operators of motor vehicles regardless of age, with standards for vision and medical fitness. Individuals who have a medical condition that adversely affects driving must report their condition to the RMV when renewing their driver’s license. People who are age 75 and older must renew their driver’s license in person and pass the vision screening or provide a vision screening certificate. Otherwise, Massachusetts law does not mandate anyone to report a driver suspected of unsafe driving.

Health care providers and law enforcement officers may voluntarily report a driver to Medical Affairs if they have good faith, reasonable belief based on personal observations, or physical evidence that the driver has cognitive or functional limitations to operate a motor vehicle safely. Medical Affairs then makes the determination that the driver (i) is safe to drive, (ii) needs a competency road test within 30 days, or (iii) is not medically qualified to drive and must surrender the license within 10 days. In some cases, the RMV may impose a monitoring period or restrictions, such as no night driving. Additionally, family members and other interested third parties, such as neighbors, may request a medical evaluation by submitting a form to Medical Affairs providing the reporter’s name, address, and phone number; the driver’s name and a brief reason for concern; and at least one of the following about the driver: Social Security number, license number, date of birth, or address. Reports are not anonymous: the driver can obtain a copy by written request.

Health care providers and law enforcement officers are immune from civil liability for reporting, or not reporting, a potentially unsafe driver.

To promote safe driving, hospitals and rehabilitation facilities offer driving evaluations, and various organizations offer safety programs designed for older drivers. Use of adaptive equipment, such as mirror adaptors and pedal extenders, can also assist with driving more comfortably.

Giving up driving can mean loss of independence and isolation. If you have loved ones who are declining in functional capacity, you should ride with them and carefully note their driving abilities. Be prepared for the difficult conversation and share your observations and offer helpful alternatives. When appropriate, contact the RMV to request an evaluation.

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 Cha; Bulkley, Richardson and Gelinas, LLP; Hadley, MA; 413-256-0002Attorney Seunghee ChaMedicare turned fifty-five years old this year. The national health insurance program, which covers Social Security recipients 65 years old or older and certain individuals with permanent disability, among others, is credited for playing a significant role in reducing poverty. Over the years, the program has expanded to include benefits such as home health care, durable medical equipment, and hospice.

Health care providers tend to misconstrue the law, believing that improvement is a requirement for coverage for skilled care.

Among Medicare’s benefits is skilled care for nursing home care, outpatient therapies, and home health care. The rules governing coverage vary depending on the care setting. For example, skilled care under Part A requires at least 3 days of inpatient hospitalization and a maximum coverage of 100 days in a benefit period. Skilled care as part of home health services under Part B is available to people who are homebound, without the institutional requirement or a 100-day limit.

Skilled care is nursing and physical, occupational, and speech-language therapy services that can only be performed safely and effectively by or under the supervision of professionals to treat, manage, observe, and evaluate a patient’s conditions and care. (Skilled care should not be confused with custodial care in nursing homes for room and board and assistance with activities of daily living—Medicare does not cover custodial care.) 

Under Medicare law, skilled nursing or therapy is provided to patients to improve their condition, maintain current capabilities, or prevent further deterioration. Unfortunately, beneficiaries, particularly those with longer-term or chronic conditions, are often denied skilled care because they are not improving. Health care providers tend to misconstrue the law, believing that improvement is a requirement for coverage for skilled care.  

Due to the widespread, wrongful denial of skilled care around the country, in 2011 Medicare advocates filed a class action lawsuit against the Centers for Medicare & Medicaid Services (CMS). The case, Jimmo v. Sebelius, was settled in 2013; as part of the settlement CMS issued a clarification of the law that skilled care coverage includes services to maintain a beneficiary’s current capabilities and to prevent further decline even if the beneficiary does not improve. CMS was also required to conduct an educational campaign to Medicare providers and adjudicators. 

Several years after the Jimmo settlement, Medicare beneficiaries still face denial of medically necessary skilled care. The application of the erroneous improvement standard persists, according to a recent national survey of Medicare providers and adjudicators.

If you receive Medicare, or you are an advocate for a Medicare beneficiary, you need to know the right to medically necessary skilled care. These services are crucial to helping people reduce their risk of falls and hospitalization, maintain activities of daily living, regain independence, or effectively adjust to new levels of self-care.