Winchester Elder Law Attorney Receives CELA

I am pleased, and proud, to let you know that I have recently been accredited as a Certified Elder Law Attorney (CELA)* by the National Elder Law Foundation (NELF). Achieving this designation was not easy, but I knew that by taking part in and completing the rigorous certification process, I would be able to continue to provide you with the best possible counsel on matters impacting your well-being and that of your loved ones.

I don’t like to toot my own horn about personal achievements, so I’ll let the folks at NELF toot the horn for me. Here is how they describe the rigorous accreditation process, and the standards that must be met, to receive certification.

A Certified Elder Law Attorney is more than just an attorney who specializes in the field of elder law. CELAs are committed, through certification, to maintaining and improving their proficiency with continual practice and continuing legal education. Becoming certified in elder law validates a lawyer’s specialty to handle issues that affect senior citizens. A CELA is in a unique position to serve the interests of older, maturing populations by having met comprehensive and strict requirements. He or she must:

  • Be licensed to practice law in at least one state or the District of Columbia
  • Be actively practicing law and must have practiced law for at least five years prior to applying for certification
  • Be a member in good standing of the Bar Associations in all places where he/she is licensed
  • Have spent an average of at least 16 hours a week practicing elder law during the three years preceding the application for certification. The attorney must also have handled at least 60 elder law matters during those three years with a specified distribution among a wide variety of topics
  • Have participated in at least 45 hours of continuing legal education in elder law during the three years preceding the application
  • Be favorably evaluated by five elder law attorney specialists
  • Pass a one time full-day certification examination
  • Repeat a similar elder law certification process every five years

An elder law attorney must be fully aware of the applicable tax consequences of any action, or will recommend the need for more sophisticated tax expertise if needed. Attorneys certified in elder law will also readily recognize areas of concern that may arise during counseling and representation relating to the following issues:

  • Abuse, neglect or exploitation of an older or disabled person
  • Insurance
  • Housing
  • Long-term care
  • Employment
  • Retirement

It wasn’t easy, but I’m glad I did it. I look forward to meeting your planning needs in the future.

*Certified as an Elder Law Attorney by the National Elder Law Foundation.

Estate Planning: Don’t Forget The Life Insurance

People put a lot of thought into their Wills and Trusts – particularly the part about who will get what after they die. Specific gifts are carefully drafted, percentages are tweaked, and special needs beneficiaries are addressed using special documents.


But there may be other assets that slip through the cracks of this careful planning.  As part of the estate planning process, all beneficiary designations should be reviewed, and copies placed into the estate planning binder. Any asset that has a beneficiary designation will go to the person listed – regardless of the direction in the Will or Trust. Since this designation pulls the asset out of the control of a Will, it is called a “non-probate” asset.

In Massachusetts, there are several statutes that specifically deal with non-probate transfers. M.G.L. ch. 190B, sec. 6-101 states that the asset “must be paid” to the person designated.

M.G.L. ch. 190B, sec. 6-309 deals with “Transfer on Death” designations, and states that the Transfer on Death designation will be followed because it is a “contract” between the owner and the company. Because another document is controlling the distribution of the account – not the Will – it is a non-probate transfer. Any contradictory terms in a Will or Trust are ignored.

So, even though you may have spent hours planning the distribution of your PROBATE estate, make sure you also check your beneficiary designations regularly. Keep copies of the current designations with your other estate planning documents so the Personal Representative can notify the beneficiary.

Additional Information:

Supreme Court Favors Ex-Wife Over Widow In Battle For Life Insurance Proceeds (Forbes)

Joint Ownership Is Not An Estate Plan

Estate Planning With An IRA


Estate Taxes: How Much and What States?

For many people, the “Fiscal Cliff” deal done in January 2013, resolved potential estate tax issues: the Federal threshold for taxable estates was permanently moved to $5,000,000.00 per person (indexed for inflation, so the actual 2013 amount is $5,250,000.00).  If the total estate is below that amount, there are no Federal taxes on the estate.

However, 21 states and the District of Columbia still impose some form of tax on estates. A few states impose an “inheritance tax” of varying degrees, depending on the relationship of the deceased to the person getting the inheritance. Some states are gradually eliminating the state estate tax entirely. Other states, Massachusetts for example, have a lower threshold than the Federal amount ($1,000,000.00 in Massachusetts), and cap the estate tax taxable percentage (in Massachusetts the maximum tax rate is 16%).

Forbes Magazine has an interesting and useful state-by-state map detailing estate and inheritance taxes: Where Not To Die In 2013  

A more detailed analysis of the estate tax: Is the Estate Tax Doomed (NY Times)

May Is Elder Law Education Month

The Massachusetts Bar Association and the Massachusetts Chapter of the National Academy of Elder Law Attorneys have joined together to sponsor “Taking Control of Your Future: A Legal Checkup.” Qualified attorneys will be giving presentations throughout the month of May at local Councils on Aging.

I will be speaking at the Arlington Council on Aging on May 13, 2013, at 10:30. I hope to see you there.

College Students Need “Estate Planning” Documents

0411-graduates-clip-artEstate planning is not the first thought most parents have when their child is accepted to college. But it should be addressed before your child goes off to school. Once your child turns 18, they are no longer a minor.  Legally, they are an adult. Because the child is no longer a minor, parents do not have the automatic legal authority to simply take over their child’s financial affairs – or even get information about health care issues.

Several years ago, a friend of mine called me, furious and upset. Her son, who had just turned 18 years old, had gone off for his freshman year at an out-of-state college. That morning she had received a text message from him, saying he felt awful, and was going to the infirmary on campus. He said he would be in touch to let her know what was going on.

A couple of hours passed, and she heard nothing. She tried calling him, but he did not answer his cell phone. Now worried, she called the school infirmary to see what was going on.  She was stunned when the nurse would not confirm that her son was even in the infirmary. The nurse said that the law prohibited her from talking about her son’s medical condition, without written permission from her son. My friend tried the, “I pay the tuition” argument. It didn’t sway the nurse at all.

Finally, her son called and said he was fine – he had never actually gone to the infirmary because he felt better by the time he got there. So, he decided to go out to breakfast instead. Sorry for not calling her back, he just forgot.  When he came home for Thanksgiving, she brought him into the office and he signed a Health Care Proxy and Power of Attorney.

So, if you have a child who is turning 18, have them sign heath care documents and a financial Power of Attorney.

NBC News: Even Young Adults Should Start Estate Planning

Granny Pods: An Alternative To A Nursing Home?

 Officially called a MEDCottage, these are modular units that can be placed in a family members yard and may be an alternative to nursing home placement. The company that manufacturers them, N2Care, says their mission is to “to design, create and deliver products that will enable families the opportunity to directly participate in the extended care of loved ones.”

There are three sizes available ranging from 288 – 605 square feet, although the size and design of each cottage is customizable. Each unit has a kitchen, bedroom, visiting area, and a handicapped accessible bathroom. Electricity and water connections are made to the homeowner’s utilities. The units also have an array of high-tech features to monitor medication, vital signs, and may be equipped with features found in most modern hospital rooms, including safety rails, lighted flooring, built-in cameras and a defibrillator machine.

According to Kenneth Dupin, the founder and CEO of N2Care, sometimes local zoning restrictions limit where the cottages may be placed. The Cottages, which can cost up to  $125,000, have generated a lot of interest as families look for alternatives to nursing home placement for an aging parent.

More Information on MEDCottages:

CBS Morning News Story: “Granny Pods: Inside Housing Alternative for Aging Loved Ones.”

Washington Post: “Pioneering The Granny Pod”

Aid and Attendance Benefits

On December 6, 2012 I will be giving a presentation at Atria Longmeadow Place, 42 Mall Rd., Burlington, MA on the Aid and Attendance benefit available for qualified veterans. This presentation is free and open to the public. The presentation starts at 6:30 and refreshments will be served.

No reservation is required, but if you would like to make sure you have a seat, please call Atria Longmeadow Place at (781) 270-9008.

Atria Longmeadow Place Calendar (to RSVP on-line)

More Information on Aid and Attendance:

What Is Aid and Attendance and How To Qualify

Department of Veterans Affairs Booklet: Veterans Pension Program

Medicare Payment: Improvement No Longer The Standard

For decades, the decision on whether Medicare would pay for coverage for chronically ill patients has been based on the whether the patient’s condition would improve with additional care. That was a very high bar. Many patients undergoing needed physical and occupational therapy would be notified that Medicare would no longer pay because they had reached a plateau.

The rehab facility would essentially tell the patient – or their family – that they had reached their maximum level, and any further stay would have to be paid for privately. With the high cost of care, this was devastating news.

In October, the Obama administration announced a proposed settlement to a class action lawsuit that would direct Medicare to pay for services if those services are needed to “maintain the patient’s current condition or prevent or slow further deterioration.”

This is a very different standard than the one previously used by Medicare, and should result more Medicare coverage for patients who need the additional care. The proposed settlement would apply to Medicare and private Medicare Advantage programs, and applies to in-home services as well as those provided in a re-hab or nursing home setting.

Additional Information:

New York Times: Settlement Eases Rules for Some Medicare Patients

AARP: Class Action Lawsuit Against the Federal Government Terminates Medicare Improvement Standard


Joint Ownership Is NOT An Estate Plan

In an effort to make their children’s lives easier when they pass away, many people use joint ownership as a method for distributing their estate. They believe that this will be the simplest way for their heirs to inherit. In some cases, very few cases, this may be true. In most cases, however, joint ownership can have unintended consequences.

What happens with joint accounts?

Joint Tenants With Rights of Survivorship (JTROS)

When there are two or more owners on an account, and one passes away, the surviving owner(s) automatically becomes the owner of whatever was once jointly owned. If that was the original intent of the joint ownership, then joint ownership for that asset may make sense. But, joint ownership will also trump the terms of a Will. For example, if your Will states everything is to be divided into equal shares for your four children, but all of your bank accounts are jointly owned with one child, that one child is legally entitled to all of the accounts.

The joint owner may be willing to actually share the accounts but there is no legal requirement that they do so. Even if the joint owner wants to divide everything equally, they may run into IRS gifting restrictions.

Trying to evenly distribute an estate with joint ownership, rather than using a Will or a Trust, becomes more difficult as people get older. At the beginning, it can seem like a good idea. Let’s say you have four children, and purchase four $25,000 CDs – each with one child as a joint owner. Everyone will get an equal amount, and there will be no probate necessary. But, what happens if one CD is used to pay for expenses – a new car, a new roof, or needed to pay for a medical emergency? Now, one child has no inheritance, the CD has been used. Further, getting to the bank to keep everything equalized may become a problem.

Convenience Accounts: some banks will allow accounts to be set-up as convenience accounts, meaning that if the “real” owner passes away, the other person listed is not entitled to what remains in the account. Check with your bank for their policies on convenience accounts.

Jointly Owned Account May Be Subjected to Other Owner Problems

            Having a joint owner means that the joint asset is as much the other owner’s as it is yours. If the joint owner runs into financial problems, and needs to file for bankruptcy, the asset is at risk. A divorce may also place the asset at risk. And, there is always the possibility that the other owner can simply take all of the money from the joint account.

Are Joint Accounts Ever A Good Idea?

There are circumstances where it may make sense to have a joint owner. Most spouses have joint accounts. If you only have one child, it may make sense to have joint accounts. Just remember that if that child is married, or having any financial difficulties, your asset may become a part of any divorce or bankruptcy process.

If you want the other owner to get that asset at your death and do not want a public record, joint ownership may be the right decision. Since jointly owned assets are not controlled by the Will, they do not pass through the probate process. Therefore, no accounting or public record will show that the joint account was received by the surviving owner.

For estate planning purposes, assets owned with any person other than a spouse can present enormous difficulties. Joint ownership can create hard feelings between children, may present IRS gifting problems, and may go against the distribution terms of your  Will or Trust. It is easier to have a single document – a Last Will and Testament or a Trust – that controls the distribution of all of your assets, than trying to juggle multiple jointly owned assets.

How to Avoid Probate

Many people want to avoid Probate Court oversight of the transfer of their estate. In Massachusetts, all the Probate Laws changed on April 2, 2012. Although the new probate laws were supposed to make the process easier, faster, and cheaper, it seems to have had the opposite result. I am sure that in a year or two the process will be much easier, but even so, many clients still will want to avoid Probate entirely.

The probate process does not have to be difficult or expensive, but for some clients, it is something they wish to avoid. “What is Probate?” (This was written in 2010, before the laws changed. I will be updating this next month.)

There are several categories of assets that will be transferred without the need for probate.

  1. Beneficiary Designations: These types of assets – IRAs, 401Ks, Life Insurance, Annuities, – will be given to the person or people designated on the account at the death of the account owner. There are two things to keep in mind when designating a beneficiaries: 1) Make sure you have designated BOTH primary and alternate beneficiaries; and 2) Make sure the designations reflect your actual distribution wishes. For example, if you want the account to be distributed to all of your children, make sure that they are all listed as beneficiaries. Particularly with retirement funds, there will be income tax consequences if one child is named, but then wants to share the funds with other siblings.
  2. Jointly Owned Assets: Any asset on which there is a joint owner will automatically belong to the survivor. For some married couples, this ease of transfer at the death of the first spouse makes sense. However, for single people, jointly owned assets may not reflect their distribution wishes. For example, if there are two children and one child is added on to bank accounts, that child will become the owner of any account on which they are named. It may be possible to overcome this presumption of ownership by designating the account as a “Convenience Account” at the bank, and by including a statement in your Will that these joint accounts were never intended to belong to the surviving owner.
  3. Create and FUND a Trust: By far, the best way to avoid having your estate go through the Probate process is to establish a trust. A trust replaces a Will as the primary after-death transfer document. BUT, the second step – after creating a trust – is to make sure that the proper assets are re-titled and placed into the trust. That step is called “funding the trust.”

Only those assets actually in the trust at the time of death pass without Probate. If an asset is not re-titled into the trust, it will have to go through Probate. Since most people want a trust to avoid Probate, the planning is incomplete without this final step.

How an asset gets placed into the trust depends on what it is. For example, re-titling a bank account can usually be done easily by going to the local branch and telling them you have created a trust. The bank may want a copy of the first and last page of the trust, but will then simply re-name the account. The account is now in the trust. For real estate, a new deed should be prepared transferring the property to the trustee of the trust. That deed is then recorded at the proper Registry of Deeds – and the real estate is in the trust.

As a general rule, retirement accounts should be left alone. Do not make the trust the beneficiary of retirement accounts without first consulting with your attorney and tax advisor.

 Additional Information:

Most Common Mistakes in Naming Beneficiaries, Wall Street Journal (2011)