Planning for Life

Limited POA Does Not Make Trust Countable SJC Rules

Posted by Harry S. Margolis on July 27, 2021

By Harry S. Margolis

In Patricia A. Fournier vs. Secretary of the Exec. Office of Health & Human Services (SJC-13059, July 23, 2021), the Supreme Judicial Court finally puts to rest a MassHealth argument that property in an irrevocable trust may be countable if the grantor retains a limited power of appointment to charity. The SJC had left this question open in the prior case of Daley v. Secretary of the Exec. Office of Health & Human Servs., 477 Mass. 188, 203 (2017).

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Topics: long-term care planning, MassHealth, irrevocable trust

Is a Grandchild Born Out of Wedlock a "Grandchild" in a Trust?

Posted by Harry S. Margolis on July 20, 2021

By Harry S. Margolis

Trusts-Steve-Bing-Inheritance-grandchildren-margolis-and-bloom

The sad story of Stephen Bing, a Hollywood impressario who committed suicide last year at age 55 after running through his $600 million inheritance from his real estate mogul grandfather, continues with a court decision disinheriting his out-of-wedlock children.

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Topics: Grandchildren, irrevocable trust

Getting Together Later in Life? Put Your Intentions in Writing

Posted by Harry S. Margolis on July 13, 2021

Harry S. Margolis

second-marriage-prenuptial-agreement-elder-law-attorney-Wellesley-MA-02481

When couples marry or move in together when they’re young, they probably don’t need a prenuptial agreement or anything in writing about how they will share expenses and what will happen if they go their separate ways. They probably have little in savings or other assets and what they do accumulate, they will do so together.

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Topics: second marriage, prenuptial agreement

Why Must Centenarian Resort to GoFundMe to Pay for Home Care?

Posted by Harry S. Margolis on July 6, 2021

By Harry S. Margolis

The Boston Globe reported that Juliet Bernstein, a Cape Cod resident who turned 108 years old last Friday, has raised $72,000 on GoFundMe to pay for her home care. Since the article ran, she has raised another $50,000.

Chatham-Masshealth-Medicaid-elder-care-attorney-Wellesley-MA-02481

Ms. Bernstein has had to resort to this source of funding because neither Medicare or MassHealth will pay for her care and her children don't have the means to contribute more than they have already. She has taken out home equity loans on her home and her oldest daughter, who is 80 years old herself, has taken out a reverse mortgage on her own home to help pay for her mother's care.

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Topics: MassHealth planning, MassHealth, home care, estate recovery

Case Muddies MassHealth Annuity Situation

Posted by Harry S. Margolis on June 29, 2021

By Harry S. Margolis

Masshealth-annuities-court-decision-elder-law-attorney-Wellesley-MA-02481

A recent Superior Court decision rules in MassHealth's favor regarding rights to payments from an annuity after the death of a nursing home resident's spouse. This muddies the waters with respect to this common MassHealth planning tool because the decision is the opposite of that made by another judge in a similar case.

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Topics: MassHealth planning, annuities

The 2020 Census, Massachusetts, and the Baby Boomer Tsunami

Posted by Harry S. Margolis on June 24, 2021

By Harry S. Margolis

Unlike what happened after other recent censuses, Massachusetts held its own with the rest of the country over the past decade. As a result, we did not lose any congressional seats.

Massachusetts Keeps Up

While our growth rate of 7.4%, from just over 6.5 million residents in 2010 to 7 million in 2020 kept pace with the national growth rate of 7.1%, because of uneven rates of growth, we dropped from the 14th most populous state in 2010 to the 15th today, with Arizona leapfrogging from 16th to 14th. Indiana actually fell back to slots from 15th to 17th as Tennessee moved up from 17th to 16th.

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Topics: baby boomers, aging, demographics

Let’s Clarify the MassHealth Notice Sent to All Members That is Causing Anxiety and Confusion

Posted by Patricia C. D'Agostino on June 23, 2021

MassHealth Planning - Margolis-and-Bloom-Patricia C. Dagostino

MassHealth recently sent this notice about estate recovery out to many beneficiaries. We anticipate the agency will send this notice to another batch of members at the beginning of July, we are receiving a lot of calls from clients asking what this means and so here is a brief summary.

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Topics: MassHealth planning, MassHealth, Estate Planning, MassHealth lien, estate recovery

Post-Divorce (or Separation), Check Your Beneficiary Designations

Posted by Harry S. Margolis on June 21, 2021

By Harry S. Margolis

life-insurance-beneficiary-designations-estate-planning-attorney-Wellesley-MA-02481

The unfortunate case of Dora Jean McCormick v. Sara C. Lischynsky (U.S. Dist. Ct. MA CA No. 19-10433-FDS, May 14 2021) demonstrates the need to review and update beneficiary designations on retirement accounts and life insurance policies after a change in circumstances.

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Topics: divorce, probate litigation

Should You Do Estate Tax Planning in Massachusetts?

Posted by Harry S. Margolis on June 13, 2021

By Harry S. Margolis

estate-planning-attorney-Wellesley-MA-02481

With the federal estate tax threshold now at $11.7 million, very few people need to do federal estate tax planning any more. (The threshold was at $1.5 million as recently as 2005.) President Biden has proposed ratcheting back this limit to $3.5 million, but together through "portability" married couples would still be able to shelter $7 million from estate taxation. (The threshold will automatically drop to about $6 million in 2026 even with no new legislation since the Trump-Ryan increase had a 10-year sunset.)

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Topics: estate taxes

'Take Me Out and Shoot Me' Plan Leads to Family Squabble

Posted by Harry S. Margolis on June 7, 2021

By Harry S. Margolis

elder-care-attorney-long-term-care-planning-Wellesley-MA-02481

Several years ago, I acted as mediator in a family dispute resulting from the failure of a senior and her family to plan ahead for her potential disability. At the time, she was disabled and living with one daughter who, with her husband, hired caretakers to take care of her mom. The dispute was over how much of the mother’s estate should go to the daughter and her husband for the sacrifice they were making.

Marilyn's Long-Term Care Plan

The mother, who I will call Marilyn, made no plans for her possible need for long-term care. Her family reports Marilyn to have said that she would never go to a nursing home and if she ever had to, her family should “take me out to the backyard and shoot me.”

After her husband died, Marilyn was living alone in the family home and was very lonely. She and one of her daughters, who I will call Nancy, agreed that Nancy and her husband would purchase a larger house with financial assistance from Marilyn so that they could all live together. While there was some discussion of how the finances would work and what would happen if Marilyn needed care. Everyone was counting on everyone else’s good faith.

Nancy and her husband purchased the larger house. Marilyn moved in and paid about half of what would be her share of the purchase price based on the size of the in-law apartment she occupied. Then, unfortunately, she became ill and needed increasing levels of assistance. Nancy had to give up her part-time job and there was a great strain on the entire family caring for Marilyn.

Family Disagreement

Nancy’s brother and sister appreciated the sacrifice Nancy and her family made and agreed that she should be compensated as a result, but they couldn't agree on the extent of such compensation.  Nancy was offended by suggestions that some of what she did was simply what daughters do for mothers and shouldn’t be fully paid for.

The biggest disagreement was over what would happen after Marilyn's death, since at that point Nancy and her husband would be living in a bigger house than they would need or could have afforded on their own without Marilyn's contribution.  Nancy and her husband saw large financial costs and risks in living in this bigger, more expensive house. Nancy’s brother and sister saw Marilyn’s money — all of which might disappear in payments to Nancy and paid caregivers — as helping Nancy and her family have a bigger, nicer house than they could have had on their own. And these decisions were made among Marilyn, Nancy, and Nancy’s husband without the participation of Nancy’s siblings, who were presented with a fait accompli.

Given the different perspectives, some hurtful comments were made in the negotiations causing feelings that caused a rupture in the family. (It didn't help that Nancy was rather dogmatic about how to go about caring for Marilyn. While it's often true that the child on the scene knows the situation better than other children in other parts of the country who may have ill-informed, but strong opinions about the care the parent should receive, in this case Nancy refused even to consider alternatives that might reduce the cost of caring for Marilyn.)

Plan Ahead and Put it in Writing

While there are no guarantees, it is more likely that this could have been avoided had Marilyn planned ahead and if the entire family had been involved in the planning. While it often works well for older family members to move in with their children, or vice versa, a full discussion of how the living arrangement will work when and if the parent begins to need care could help avoid problems in the future.

It also helps to put the plan in writing for several reasons. First, it makes sure everyone is in agreement or brings disagreements or different understandings into the open. Second, it serves as an aid to memory, since years later different people may have different memories of what they had discussed and agreed to. And, third, the act of putting decisions in writing raises issues that the parties might not have considered otherwise. It's better that these be discussed earlier rather than later.

But even with a written plan, everyone needs to be flexible. Unanticipated situations arise and circumstances change. The child who agreed to take the parent into his house may not be able to do so if he moves across country due to a new job opportunity, or gets divorced, or faces his own medical challenges.

 

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Will You Leave Your Children a Negative Inheritance?

System Failures: Policing, Public Health, Education, Housing, Long-Term Care

MassHealth Planning and Real Estate

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Topics: family dispute, family caregiver agreement, family caregiving, home care

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