Boston Estate Planning and Probate Lawyer & Attorney : Gosselin & Associates Law Firm : Serving Boston, Winchester, Hingham, Wellesley, Manchester

• Print
• Comments
• Trackbacks

Casinos are ordinarily divided into two main sections, one for table games (blackjack, baccarat, roulette, and craps) and one for slot machines (the infamous "one arm bandits"). Walking around the casinos it quickly became apparent that those playing at the tables were mostly younger and middle aged men, mostly in small groups, making some serious calculations of their potential success. These were men who knew the odds and were consciously putting their money on the line strictly for a speculative financial return. Many of these men lead ordinary lives as lawyers, accountants, managers - people who take little risk in their "day" jobs, but vent their conservative natures from time to time by seeking Lady Luck. These are the same folks who drive Toyota Camry's during the week and Harley Davidson's on the weekend. Put in perspective, these gamblers understand the risks they are taking at the tables and are prepared to lose their grubstake as dues for the release that being a "player" brings to them. Seldom do these gamblers gamble their rent or food money.

Since there were two people who could communicate with each other, there was this type of gambling - "Hey Org, I'll bet you a rock that you get eaten by that saber tooth tiger first!" As an elder law lawyer, I am far more concerned with the other side of the casino. Like a vast sea of buzzing alarm clocks, beeping microwave ovens and unstoppable car alarms - the cacophony of the slot machine areas in casinos sounds like a virtuoso performance to those seeking to be winners. BAR - BAR - BAR. 7 - 7 - 7. With carpal - tunnel - inducing - repetition, the Nicotine induced masses monotonously search for the machines' positive feedback. Most of the people at the slot machines appear to be obsessed by the prospect that they could be winners - some of the machines even say "You're a Winner", never telling you that you are a loser.  Whether by illness, financial distress or merely addictive natures, many people are drawn to spending what remains of their lives and savings fixated on the hope of positive reinforcement from a machine. The real walk-out-the-door payouts are meager. Few walk out of the casino with a surplus - they let it ride, and when they do, they lose. Like the lonely elders who spend all their money on meaningless junk just so they can chat with their favorite Home Shopping Network or QVC operator, casinos provide a sense of community.

This reason is not a good one to keep building casinos. It would seem that the vast majority of the masses in the Las Vegas casinos are there to pass time in an atmosphere where there is a chance of rising from the crowd, where your car alarm goes off, your lights blink and everyone knows that you're a winner. I am concerned that far too many elders are in casinos with funds that they need for their own protection. In fact, I recently became aware of a reverse mortgage company that is promoting their services along side a major casino. Reverse mortgages have an important place in elder law planning. They are a financial tool to protect an elder's standard of living, dignity and sense of place in remaining in their own home. Reverse mortgages are not a remedy of last resort. Advertising reverse mortgages in a context of gambling is mercenary and solicitous of the very people who need sound financial planning and advice from a competent elder law lawyer. A casino in Connecticut that advertises heavily in the Boston market, Mohegan Sun, offers this new innovation: ************[from MoheganSun.com]**********"It's the latest trend in slot machines and only Mohegan Sun has it. The Northeast's premier entertainment destination installs 20 half-cent slot machines in its Casino of the Earth and Casino of the Sky. This makes Mohegan Sun the only destination in the United States to offer this new technology. This latest offering allows customers to wager half a cent instead of the traditional quarter, dollar or even penny it's just another way Mohegan Sun is revolutionizing the gaming industry.********** You read it right. HALF-cent machines.

 Boy, they sure are revolutionizing the gaming industry. And legislators say that casinos are not preying on the elderly? The poor? The uneducated? Apparently the government is so blinded by the voluntary tax dollars that pour into state coffers that they don't see the societal and financial evil brought on by the wholesale distribution of false hope and deus ex machina for sad lives. This government is the same one that cannot provide long term care without impoverishing its people, cannot offer even a remotely intelligible drug benefit for Medicare recipients and is afraid to impose meaningful taxes on the very rich. I imagine there are many casino owners in that category - they are easy to recognize, they are laughing and like a heroin dealer that never shoots up, you won't see them pulling the handle of that revolutionary ha'penny machine. We don't need more casinos. We don't need any casinos. I think we need some new ideas. As many know, I love inventions. My latest invention? The Jackpot Emulator (tm). I see this as a Medicare reimbursable device not unlike a prosthetic or a wheelchair. Like a slot machine in every way, but the JE does not require the payment of any money, nor does it pay out any money, but rather brightly colored slips of paper that exclaim - YOU'RE A WINNER!! For the cost of the machine and a little electricity we could set up Jackpot Emulator (tm) rooms in nursing homes and senior centers where elders could push buttons and hear whirring happy sounds to their hearts' content and then go home with the satisfaction of being a "winner" with no possible way of putting their personal financial security at risk. Now that is revolutionary.

• Print
• Comments
• Trackbacks

Getting to Sure: Legal Capacity and the Elder Lawyer in the Context of Reverse Mortgage Transactions

Introduction: Legal Capacity and the Elderly

 In general, the law presumes that all adults have legal capacity unless proven otherwise. The legal standard of proof is “clear and convincing” which means, in essence, that the law sets the bar pretty high for those wanting to prove that someone is incapable of being a legal person and, therefore, unable to be a client or enter into contractual arrangements. That being said, legal capacity is situational, as is the required degree of mental capacity, both depend on the proposed act. For example, a relatively low level of capacity is required for someone to create a valid will (individuals making a will only need to show that they understand that the document they are creating is a will), while a higher level of capacity is needed for providing informed consent to medical care. The degree of legal capacity necessary to establish a lawyer-client relationship lies somewhere between the capacity of a will-maker and that needed to give informed consent to medical care. In order for prospective clients to ethically be considered legal clients, lawyers must be able to establish that the clients have sufficient legal capacity to both become the lawyer’s client, as well as having the legal capacity to take whatever legal action the client purports to do.

Medical Tests and Legal Ethics: What’s the Standard Measure of Capacity?

When dealing with elderly clients, the law’s general presumption of the client’s capacity may be inaccurate in many situations involving elderly clients. When family members (e.g. adult children), brings an aged person to an elder law attorney, in some instances they may be doing so because of some observed events or behaviors that suggest to them that the person’s mental faculties are declining. Such non-clinical observations while not determinative, they do raise the question of whether the person in question has the legal capacity. How then does an elder law attorney determine a prospective client’s legal capacity? 

According to Veda Johnson, who has been a geriatric nurse for ten years working in nursing homes and hospitals in Orlando, Florida, where the elderly population has been growing rapidly for the last ten to fifteen years, assessing the mental acuity of an elderly patient is not simple. There are several kinds of tools in the form of scales or assessments, like the Glasgow Coma Scale for example, that are used to evaluate how “alert and oriented” an elderly person might be. Unlike nurses, lawyers seeking to determine whether elderly clients have sufficient legal capacity do not have any professional tools available to them. There is no standardized procedure or even a universally accepted legal definition. And in both the medical arena and the legal field determining if a person is losing her mental faculties is never a yes-or-no question. 

Each lawyer must make an independent, holistic determination on a case-by-case basis, each time weighing all the facts and circumstances.   Some attorneys rely on their personal observation of the older person plus comments from those who spend time with the older individual. But, determining if one has legal capacity is not the same as rationally determining what makes sense to the according to attorneys’ predilections. So attorneys must be aware of keeping their own prejudices at bay when making a determination. While bizarre or inexplicable behavior can be interpreted as evidence of diminished capacity, eccentricity is not the same as incapacity. But, as one might imagine, the dividing line can be exceedingly difficult to draw. 

The Model Rules governing lawyers’ ethics nationwide are primarily aspirational, but should at least guide lawyers’ decisions about where the line falls. States may also have ethic rules on what constitutes legal capacity in the context of representing elderly clients. In Massachusetts, for example, Rule 1.14 of the Massachusetts Rules of Professional Conduct lays out what lawyers must do if they suspect that a prospective client lacks legal capacity. The rule does not specifically speak to elder attorneys; however, Comment 1 to the rule states in part, “it is recognized that some persons of advanced age can be quite capable of handling routine financial matters while needing special legal protection concerning major transactions.” Entering into a reverse mortgage transaction is more complex than contracting for other secured loans (like home equity loans, for example) so a reverse mortgage can be considered a “major transaction.” There will be times when a lawyer will conclude that a client seeking to obtain legal representation in procuring a reverse mortgage loan lacks legal capacity, but has legal capacity for other contractual matters. If this is the case, there are a few options for lawyers that allow them to represent an elderly client.

Powers of Attorney

One option is obtaining a power of attorney. There are three kinds of power of attorneys. There is the non-durable power of attorney which terminates when the person who created it becomes legally incapacitated. A durable power of attorney, on the other hand, continues to be valid even after the principal becomes incapacitated. The third kind of a power of attorney is the springing power of attorney which becomes effective only upon the happening of an event that has been designated in the terms of the document. All powers of attorney terminate automatically upon death.

It is better for seniors to create power of attorneys when they are legally competent and in good health. But, if there are already health problems, early signs of dementia or Alzheimer’s disease, one should be created immediately. By creating a durable power of attorney for finances, with gifting authority, for example, seniors can appoint someone else to handle their personal finances, including the authority to transfer your assets even after they become incapacitated.

Guardianships

Guardianships are a more formal option than powers of attorney. They involve going through a legal process in the probate courts. There are generally three types of guardianships. First, guardianship of the estate, or as it is also known, conservatorship, which is limited to substitute decision making for matters concerning the incapacitated person’s property (assets). Second, guardianship over the person, which gives the guardian control over decisions affecting the “person’s person”, such as: where to live or whether to consent to medical treatment. Third, plenary guardianship, which grants guardians the power to make decisions over both the person’s property and person. Within the context of these three forms of guardianships, most state statutes permit probate courts to appoint limited guardians; which means, as the name implies, that such guardians have no more power than is necessary to meet the needs of the persons over whom they are appointed.

Joint Ownership Arrangements

Powers of attorney and guardianships are not the only ways of making sure that an older person will have a mechanism in place for taking care of financial affairs when that person is no longer able to do so. Joint ownership arrangements can also be used. The specific forms include joint tenancy, tenancy in common and, for married couples, tenancy by the entirety. The types of joint ownership arrangements have many characteristics in common. One such feature is what happens when one joint owner dies - the other owner automatically assumes ownership and control of what was owned in common. Creating a joint tenancy can be quite simple. Adding a new signature on a bank account or changing a deed on real estate may be sufficient; no special forms are needed. But, creating a joint tenancy can have complex financial, tax and legal consequences, thus, it is probably advisable to consult a lawyer or financial professional for advice before creating one. 

Revocable Trusts

Another alternative to guardianship is creating a revocable trust to hold the older person’s (a.k.a. settlor’s or grantor’s or trustor’s) assets. The trustee of the trust might be a close friend or relative or perhaps a bank’s trust department or some other financial institution. The trust may be structured with the settlor as the sole trustee or in conjunction with another trustee who will take over completely if the settlor is no longer willing or able to handle financial matters. By definition, a revocable trust can be modified as long as the settlor is legally capable of making that decision. If the settlor becomes legally incapacitated, and there’s no alternate settlor, then the trust becomes irrevocable and only terminates upon the settlor’s death.

Reverse Mortgage Transactions and Legal Capacity

Like lawyers, lenders serving seniors 62 or older who do not have the legal capacity to enter into a reverse mortgage transaction can do so with the person or entity appointed in a durable power of attorney or with a court order guardian. Under the federal home mortgage program, HECM and HUD, guardians and attorneys-in-fact or agents named in durable powers of attorney (together referred to as legal representatives) may execute the legal documents incident to a reverse mortgage transaction, provided that they have the authority to do so by court order or per the terms of the power of attorney contract. Part of any reverse mortgage transaction also involves counseling. The law requires that seniors receive counseling before they obtain a loan. Legal representatives can and must request counseling. Whether counseling sessions are between, counselors and legal representatives or counselors and seniors directly, the reverse mortgage counseling code of ethics requires that all counseling sessions, by HUD-approved HECM counseling agencies be confidential in any event.

Reverse mortgages depend on borrower eligibility and living arrangement so it may be harder for a trust or joint owner of a property to become a borrower in a reverse mortgage loan. The trust, for example, would have to be structured in a way that left the 62-year-old prospective borrower/settlor as owner of the property to be mortgaged and the home must also be the settlor’s primary residence. As far as joint ownership, both owners would have to be reverse mortgage eligible. Thus, using revocable trusts or joint ownership as mechanisms to protect seniors at risk of losing legal capacity has some drawbacks. An elder lawyer and financial professional can help seniors and their families decide what options are best for them.

Getting to Sure in an Unsure World: A Charge for Elder Lawyers

Representing elderly clients involve many unique issues for legal and financial professionals. Assessing legal capacity is one of those issues. Many elder attorneys have developed intake forms that include questions which are useful in assessing the legal capacity of prospective clients (as well as run-of-the-mill questions about finances and ownership.) Asking what seems like simple questions like “What day is it today?” as well as questions about medications can be good when trying to decide: (a) does this person have the required legal capacity become a client; and (b) can this person enter into a major transaction like a reverse mortgage? At the end of the day the answers provided may merely help lawyers become more sure (or less certain) about the prospective client’s legal capacity, but at least lawyers would be doing their part in “getting to sure” about that client’s mental capacity as a legal matter.

Gosselin Law provides comprehensive elder law, estate planning and reverse mortgage services.  These services include Medicaid applications; emergency elder law matters; real estate transactions; guardianship; estate tax matters; wills; trusts; Medicaid annuities; Annuity planning for Medicaid; Medicaid trusts; special needs planning and related areas.  Gosselin Law can be reached at 781-729-0313 or toll free 877-325-6746.  Serving Massachusetts and New Hampshire.

• Print
• Comments (1)
• Trackbacks

Reverse mortgages are not just for poor people anymore. I am tired of hearing about reverse mortgages - in the past six months it's as if someone flipped a switch to turn up the noise, not necessarily the quality, of the messaging to elders about reverse mortgages.  

In my practice as an estate planner in Massachusetts I am often called upon to "get creative" on behalf of clients. As one of only a few true legal experts in the reverse mortgage industry, my creativity often opens the discussion with clients about complex uses of reverse mortgages in estate planning.

 I have developed several methods to leverage the equity value of a client's house to enhance either the economic benefit or overall personal security of clients. To explain the concepts in shorthand, Gosselin Law claims a servicemark on the shorthand names of many of our approaches. Here are examples of somewhat magical things that can be done with reverse mortgages as an estate planning tool.

GOLDEN TRIANGLE(sm). The Golden Triangle demonstrates to elders looking to plan for long term care how to use the reverse mortgage as a tool for closing the five year gap provided under the new Medicaid laws. It is a triangle as there is an estate plan, a long term care plan and a reverse mortgage plan coming together to provide for both current and future long term care needs. Here's how it works:

Mary, a 77 year old widow in Boston, has lived in her own home for over 40 years. This is the house that sheltered her family, where her dear husband passed and where she intends to stay until the very end. Although Mary has a good pension from the Commonwealth of Massachusetts, Social Security and adequate short term savings,  Mary is concerned that if she needed long term medical care that she could not afford to remain in her home or pay for a nursing home. Mary also wants to provide as much for her family upon her death as possible; after all she and her husband both worked hard to be able to leave something for their three children.

Mary's good health and family history of longevity helps indicate that Mary will likely grow to be very old. Her home is valued at $450,000 in today's real estate market. Based on her age, current interest rates and the property's values, Mary's HECM line of credit will be about $280,000 at closing. Mary qualifies for long term care insurance, but she feels that the $5,000 annual premium, although vitally important to her ability to remain in her home, is too much to pay on her fixed income. As many elder law lawyer advised her to  transfer the house to avoid exposure to a Medicaid lien - but every technique available requires a 5 year waiting period before she would be elegible for Medicaid.  At 77, Mary could live 15, 20 years or even longer - so even with her fixed income and ongoing inflation, she will no longer be able to afford to stay in her home in the not so distant future.

By securing a HECM reverse mortgage line of credit or similar reverse mortgage product, Mary will enable herself to have access to both a current and ready pool of cash, but also an appreciating line of credit that will be available to her for the rest of her life. Using a $5,000 per year draw, Mary will be able to buy the "Cadillac" of long term care insurance (including extensive home care benefits and high benefit limits) which will also serve to exempt her house from Medicaid liens immediately, without waiting for five years. At the same time, Mary's estate planning will have time to season. After five years, Mary will have had the peace of mind in the form of long term care insurance, lifetime financial security, and in her ever increasing available HECM cash and a now permanent estate plan to carry out her wishes. A Golden Triangle, indeed.

An interesting variation on the reverse mortgage that could work well in the Golden Triangle is the "Retirement Mortgage" from Virgin Money. Essentially a child acts as the reverse mortgage lender, documents the transaction as a loan to ensure that he or she is repaid before any other siblings at the time of the elder's death. I am a big proponent of Virgin Money (full disclosure is that I am working with Virgin Money in developing new and exciting products for the US market), on the principle that families should be helping each other first before turning to often high cost products from the financial services community. 

SNOWBIRD(sm). In the Snowbird(sm) we show reverse mortgage companies how to prospect with sunbelt real estate agents to facilitate the purchase of properties with reverse mortgages, primary residences can be obtained with a reverse mortgage purchase money mortgage, and secondary residence by using a reverse mortgage leveraged primary residence in Massachusetts as collateral for the real estate purchase. Similarly, we show elder homeowners how to conserve cash by using reverse mortgages as purchase money mortgages. Here's an example:

Bob and Cathy, 70 and 68 respectively, haved lived in their lovely 4 bedroom home in Newton for over 30 years. Now retired, Bob and Cathy enjoy playing golf, sailing and visiting with their two children and their families (who both live in the Greater Boston area). As much as they enjoy the New England seasons, they enjoy spending the Winter and long weekends in Florida. They have made many new friends and enjoy the Florida lifestyle, especially in the Clearwater Beach area.

Financially, Bob and Cathy have not fared too well. Bob worked for Polaroid for over 30 years, but because of its collapse, his pension benefits and stock savings (all in Polaroid stock) are meager at best. Bob continues to work part time at The Country Club in Brookline, which also gets him some free time on the greens. Cathy never worked outside the home, but has been doing quite well organizing Ebay sales for her friends and neighbors looking to downsize their homes. The thought of doing this at this point in her life brings Cathy to tears, but she and Bob agree that they would enjoy having a place in Florida during their healthy retirement years.

Based on Bob and Cathy's ages, current interest rates and the $800,000 value of their Newton home, they could borrow approximately $425,000 in reverse mortgage cash. They could draw it all at the closing or take some in a lump sum and leave rest to be available for future withdrawals. Bob and Cathy would very much like to purchase a $200,000 condominium in Clearwater Beach condominiums, not far from their favorite public golf course.

By taking out a reverse mortgage as above, Bob and Cathy will have the best of all worlds. They will have the cash they need to buy the Florida condominium outright (and enjoy its appreciation throughout their retirement), a financial cushion in the form of the remaining credit line on their Newton home, and most importantly, will be able to keep and enjoy their home. Of course, interest will acrrue on their borrowings, but between the expected appreciation of the Florida property and the value they place on the two-home lifestyle, Bob and Cathy will have it all in retirement thanks to the Snowbird.

ROBINHOOD(sm). The Robinhood(sm) guides more sophisticated and larger property value elders on the use of asset leverage by using other financial products, especially second to die life insurance. In simple terms, the reverse mortgage is used to pay premiums and the actuarial analysis results in a positive arbitrage for the reverse mortgage borrower. Here's a simple example to ilustrate the idea:

Mike and Sheila enjoy financial security by anyone's measure. Mike, recently turned 65, and Sheila, 66, just sold their successful software company to a larger competitor - realizing over $10 million in restricted stock in the buyer from the sale. Adding that to their $2 million primary residence in Brookline, $3 million Nantucket home and $5 million in other savings, mainly in qualified retirement plans, Mike and Sheila will pass a large estate on to their five children. Or, will they only fill the coffers of the US Treasury? Based on a $20 million estate, Mike and Sheila's estate planning attorney showed them a potential estate tax of over $6 million if they were to die this year.

If we were their attorneys, we would suggest setting up an irrevocable life insurance trust (ILIT) to hold a survivorship (second to die) life insurance policy. As wealthy as they may seem, Mike and Sheila lack sufficient liquidity to commit to a relatively large insurance premium, although the arbitrage on the numbers clearly show the economic benefit of establishing such an estate plan while they are young and healthy. The solution? A reverse mortgage, either on a line of credit basis where premiums are paid annually or a lump sum cash account where Mike and Sheila can purchase their life insurance (through the ILIT) with a single premium.

By using the reverse mortgage to pay the life insurance premium, Mike and Sheila will get the liquidity they need without running afoul of income tax rules or using restricted or otherwise inaccessible assets to pay for the needed life insurance. Upon the second of Mike and Sheila's death, the overall estate will be liquidated and the reverse mortgage paid in full with part of the cash proceeds of the life insurance policy, the balance to be used for paying estate taxes or direct bequests to their family. Based on a sophisticated side-by-side analysis of their reverse mortgage projections and life insurance guarantees, Mike and Sheila can make an educated arbitrage decision without significant risk of economic loss.

We are not licensed to provide insurance or loan products and any decision to proceed with any of these advanced reverse mortgage plans requires you to work with your trusted advisors. But, Gosselin Law can help our clients evaluate various complex uses of insurance and mortgage tools, as well as suggest reliable sales organizations

Gosselin Law is one of the only elder law firms in the country with a reverse mortgage specialty practice. We can assist homeowners in the states where we are licensed or associated with local counsel with the planning of reverse mortgages, coordination of federal benefits with reverse mortgage loan proceeds and gerneral asset protection and estate planning.

• Print
• Comments
• Trackbacks

First, I expect a lot of competition to sell me a bed, since there will be many more available than needed, so they'll have to offer me incentives to move in. "Free haircuts for life for the first 10 residents. Buy one bed, get another for half-price."

The homes will be far different than they are today. I would expect my nursing home to be named like a major sports stadium, AARP Nursing Centers of America or the Depends Elder Spectrum. Gone will be the TV game shows and nightly bingo - we'll have oldies like Nintendo and Playstation to aggravate our arthritis. On TV, we'll watch reruns of Grey's Anatomy, Family Guy and American Idol.

Instead of that ubiquitous soothing waltz music, we'll have real Muzak oldies like AC/DC, Smashing Pumpkins, and the Black Eyed Peas to keep us moving rhythmically in our rocking chairs.

And if we are out on the porch in the rocking chairs, what to wear? Style matters. How about Abercrombie & Fitch's line of easy access night gowns for geriatric women? And from REI, the Marmot Gortex Elder Pants, now with stain and odor protection. Options include special pockets for the ipod, dentures and the colostomy bag.

Wheelchairs will have flip-out laptops, handy for text messaging our fellow residents. And of course chairs will have GPS gear so we and they will know where we are headed and where we are, should we forget.

Gone will be the dishwater-flavored coffee of today, along with tasteless mush and muck they call meals. We'll get double, no-fat soy vanilla lattes with whipped from the Starbucks' traveling baristas and the Meals on Wheels cart will stock Ring Dings, Ben & Jerry's Chunky Monkey - and every other Thursday - Trans Fat Feast Night! (brought to you by Crisco)- oh the good 'ol days.

Seriously, assisted living facilities and nursing homes are changing with the times - and there is a new trend - identifying and supplying the preferences of their residents. Drab gray institutions simply won't cut the mustard when us boomers are ready for the homes. My dotage may be something to look forward to yet.

• Print
• Comments
• Trackbacks

Whenever I meet with a new estate planning client I like to take the time to know what brought them to finally sit down and plan the disposition of their assets at death (what many people call 'getting my affairs in order' or 'getting my will done'). Some decide to get their will done because of some event in their lives, a new baby, a new marriage, a new divorce, a recent death, an inheritance; while others have much more unexpected reasons for finally getting it all in writing.

For example, I met a client once who had an overwhelming fear that her grandmother's china collection would be separated at her death that she made elaborate provisions for it in a trust (I don't think she ever actually ate on it!). Another client came to me because they intentionally wanted to make the probate process miserable for their heirs, looking to me to make the most complex and inefficient plan possible so her estranged family would have great difficulty in getting at her property through the Probate Court (needless to say we sent her elsewhere for her tormenting plan). Yet other clients are motivated, even upon their deaths, by nothing more than saving money on taxes - what I call making Uncle Sam a lesser heir to your estate. I guess it is good to do what's legal to reduce your estate taxes, but some folks are more worried about the savings in tax than protecting spendthrift kids from them summarily blowing their increased inheritances. We are seeing more and more people getting their estate planning done, not to avoid probate or reduce estate taxes, but to protect their pets. I guess pets are people, too.

Whatever the reason to getting an estate plan done, it's truly the action of taking the steps necessary to complete a plan that matter, as without proper planning,  incapacity or death can have many unintended consequences. GosselinLaw.com >

• Print
• Comments
• Trackbacks

I have just come to another milestone in my life. My oldest son (10) decided that he will no longer be calling me "Daddy", but that I am forever more to be referred to as "Dad." As school kids are wont to do, my son was teased by a classmate for calling his parents "Mommy and Daddy". To conform to the bully's wishes my son just made me middle aged. I'm Massachusetts most recent middle aged lawyer father. I was a twenty something and had been enjoying my thirty somethings when this came out of the blue. In my elder law practice I am asked by prospective clients about what is and what is not elder law. Some fifty somethings ask whether they can 'qualify' to use my services for a trust or a will, while some octogenarians don't feel old enough to seek services meant for the elderly, after all "they're old people." What it all comes down to is that age is a state of mind. I tell my elder law clients that how old you think you are is so much more important than how old you are according to your birth certificate. If you need assistance with Medicaid or a will or trust you just need legal help, it's not a question of being elderly. When you need Medicaid or an estate planning attorney you can call me (781-729-0313) and, you can call me 'Daddy'.

• Print
• Comments
• Trackbacks

One of the most misunderstood words in the legal profession is trust. I am talking about a trust, the legal document. Many people can describe to me what a trust does ("it avoids taxes", "it keeps things secret", "it allows me to tell my son what to do with my money", "it manages my money", etc.) Few people actually see the essence of what a trust is, and what it is not.

Black's Law Dictionary defines a trust as "a right of property, real or personal, held by one party for the benefit of another." Or, "an obligation arising out of a confidence reposed in the trustee or representative, who has the legal title to property conveyed to him, that he will faithfully apply the property according to the confidence reposed, or, in other words, according to the wishes of the grantor of the trust." Well, that's a lot of help. I like to think of trusts as nothing more than "instructions". The person making the trust instructs the trustee to do something for the benefit of another person (the beneficiary). Try the exercise of replacing the word 'trust' with the word 'instructions' and I think you'll see how simple it can translate legal jargon. Trusts are really the modern equivalent of wills a generation ago. They are affordable, flexible, can avoid probate, reduce will contests and protect your family from a myriad of legal problems. Some types of trusts can even help you qualify for Medicaid as part of a comprehensive Massachusetts elder law plan.

Although trusts come in many different flavors and styles, the core element is protection of assets and ease of management. Some countries, most notably France, have no legal identity for trusts. Even the term 'trust' can't be easily translated into French, because there is no legal equivalent. As a result it can be very difficult for trusts to acquire property in France or otherwise conduct business as they are not recognized as separate legal entities. Although the concept of a trust may exist in other countries as a practical matter trusts are only used by the super rich and powerful. During the middle of the 20th century, as U.S. banks and trust companies became more competitive to offer services to a burgeoning (upper) middle class that came about after World War II, trusts became more available. In sum, a good written set of instructions left in the hands of a good person is your best defense against an unwanted outcome upon your incapacity or death. Trusts fit the bill. Let one of Law for Life's experienced trust and estate planning attorneys help you with your personal trust planning. Call them at Gosselin Law at 781-729-0313.

• Print
• Comments
• Trackbacks

The earliest landowners probably demarcated their property by saying, "I own my cave and 100 steps in every direction from its entrance." Over time, as the number of humans increased, the law had to evolve in order to regulate more complex ownership interests. Any form of regulation requires balancing rights and duties. And when "a house is divided," i.e., when several people share ownership of the same piece of property, it becomes especially important to explicitly define each party's rights and delineate each party's duties.

 In legal terms, there are three ways in which co-ownership (known as concurrent ownership) is structured: The parties can be (1) joint tenants, (2) tenants by the entirety or, (3) tenants in common. It is important to note that concurrent ownership is a concept that only applies to present possessory interests in the same property. For example, if the same piece of property is given in a will to several people, they will not be considered concurrent owners.

Joint Tenancy: Traditionally, joint tenants must receive their interest at the same time and through the same document, like a will or a deed. Survivors is the other important characteristic of joint tenancy. Survivors means that when one of the joint tenants dies, their interest automatically passses to the other joint tenant. The heirs of the deceased joint tenant or those named in her will do not have the right to inherit the property. In order to create this type of ownership, the party or parties seeking to create it must use specific language demonstrating that intent.

For example, if Grandpa Adam wishes to give his apartment to grandsons Cain and Abel for them to share as joint tenants with right of survivorship, the legal document giving the apartment to Cain and Abel must specifically say something like:" to Cain and Abel, as joint tenants". Each joint tenant's interest must be equal in amount. Building on the example above, Cain and Abel each must have an equal, undivided one-half interest. And like a tenancy-in-common (discussed later) each joint tenant has the same the rights of ownership, i.e., each can use, occupy and possess the property at the same time. A joint tenancy can continue indefinitely unless one of the tenants does something to sever it. Certain actions (like partition, discussed below) will break the joint tenancy and automatically make the co-owners tenants-in-common.

Tenancy-by-the-Entirety: A tenancy-by-the-entirety is a form of co-ownership that applies only to husbands and wives while they are married. It is based on the archaic common law view that husband and wife are only one person for the purpose of owning property. As long as they are still married, neither the husband nor the wife have a separate interest that can be sold, mortgaged, leased or liened against. The property cannot be divided or partitioned between them. In Massachusetts each spouse has an undivided interest in the whole property and the right to sole ownership when the other spouse dies.

Since a tenancy-by-the-entirety applies only to a husband and wife during a valid marriage, should they divorce, the ownership is automatically converted into a "tenancy-in-common" with each person owning a one-half interest in the property. At the outset, husbands and wives who do not want to be tenants- by- the-entirety, should make sure that any property they acquire while they are married is documented using language which clearly states that they do not own the property as tenants by the entirety.

Tenancy-in-Common: A tenancy-in-common generally applies to two or more persons who are not husband and wife, but own the property together. The owners may have unequal interests and may had receive their interests at different times and through different means or documents. A tenancy-in-common may be created in a written agreement or by default (as discussed above in the case of broken joint tenancies and severed tenancies by the entirety). The key difference between a tenancy-in-common and other types of co-ownership is survivorship. Upon death, a tenant-in-common's interest passes to her heirs or those named in her will. There is, therefore, no right of survivorship that transfers the decedent's interest in the property to the other co-owners. Each tenant-in-common can occupy and utilize every portion of the property at all times and in all circumstances and, each co-owner is also responsible for a proportionate share of the expenses, taxes and repairs incident to property ownership.

If the all of the expenses are paid by one co-owner, the other co-owners must reimburse her for their share of the costs. Or should they refuse to pay her, she may petition the court to levy a lien against their interests in the property. Co-owners have the right to sell their interest in the property, giving it away while they are alive or transferring it to persons of their choice at death, without the consent of the other co-owners, with the buyers or inheritors sharing the same rights and duties of ownership as the co-tenant who passed on her interest. If tenants-in-common wish to terminate their joint ownership of the property they may voluntarily do so by signing an agreement to partition or they may file a court action for partition in the Probate Court or Land Court.

Petitions to Partition: Property can only be partitioned if co-tenants share a present, undivided legal interest and they may either divide the property into parcels or, if the land cannot be fairly divided, the court may order that that the property be sold by private sale or public auction and their proceeds be apportioned by law equitably among the co-owners.

A property can be partitioned even if there is a lease on it, and someone living in a leased, partitioned property, must be permitted to continue living there. Merely instituting partition proceedings does not terminate a tenancy. Partition proceedings, like any other legal action, cost money. The court determines the reasonable expenses and charges of the proceedings. If the property is sold, these expenses and charges are paid out of the sale proceeds and in those cases where the property is divided, the petitioner (the person asking for the partition) pays the expenses and charges with contribution from the other parties in proportion to their respective interests, unless the court finds that a different ratio would be more equitable.

Conclusion: Even the most primitive conceptions of ownership probably recognized the importance of specificallydefining the rights and duties of each co-owner when more than one person owns the same piece of property. The earliest assertions of concurrent ownership probably went something like, "We both own this cave. I have a right to live here and you do too. You have to clean it and I will clean it too."

Today, because more and more people are co-owning property, "dividing the house" has become an even more complex task for which professionals are needed. Seniors who like to co-own property or who'd like to get their money out of a piece of property that they own with others, should contact a lawyer and/or a real estate professional. Lawyers can be instrumental in drafting the appropriate legal documents that define co-ownership, and in the event of a voluntary or court-ordered partition, lawyers can draft the requisite partition agreements or can represent petitioners in probate or land court proceedings. When "a house is divided" someone should be there to make sure that it doesn't fall as the pieces are being put together or when they are being taken apart.

• Print
• Comments
• Trackbacks

A few months back my barber became seriously ill. Since I get my haircut about once every 6 weeks or so, I happened to come to the barber shop at the beginning of the "bad news cycle" that the other barbers in the shop had started. These old Italian men quite emotionally described how their brother barber had fallen ill, the grave prognosis, his family's sorrows, the distress on his friends, etc. It was quite a natural outpouring of woe about everyone's mutual friend.

Because of a probate court date I needed a trim about a month later, I was met once again with the news of the barber's illness, he'll be out until March, his wife has taken time from work, etc... It was quite matter of fact really, but they needed to tell me as I had asked "how's he doing?" This got me thinking about how there is a whole exercise around communicating about grief. How we become accustomed to repeating dreadful things. "Yes, he went quickly, the bus driver was cited for speeding." "Mother fought cancer for years, it's a blessing she's gone." "I just woke up and there he was, he never woke up."

Anyone that has stood in the receiving line at a wake has taken part in the modern grief dance. The mourner says "I'm so sorry for your loss"; the family member says "thank you for coming, it would have meant a lot to old Ed." Rinse, wash, repeat. I'm not a psychologist, but I think there's some harm in wakes. Originally wakes were apparently held to ward off evil spirits (by staying awake with the body) until you got the body in the ground. Wakes then evolved to be a form of confirmation of death and social event. Until fairly recently in human history wakes were always held in the family's home. Either dead people started having more friends or someone saw a business opportunity in using their living room for wakes and the "funeral parlor" was born.

Me, I'd be perfectly happy to be waked in my front hall. The wake is an event for the living, not the dead. It's a time to bring families together to mourn, grieve and share stories of the dear departed. But wouldn't it be nice for a widow not to have to explain how her husband got stuck in the snowblower last Thursday 400 times? I propose a new model for wakes. First, let's do them in happy places, like Cheesecake Factory or the Museum of Fine Arts (another business opportunity for AARP?). Seriously, the body will be happy whereever it's placed and frankly it's only our more recent generations where all things humans are pasteurized and sterilized. In many countries bodies are buried quickly after death (mainly for the practical purpose of avoiding the consequences of hot weather), but also to dispatch the corpse so that there can be a celebration of the person's life through various forms of mourning. Heck, maybe the Probate Court could be a positive place for families to come together? I've always wanted to officiate a reading of the will like you see in movies, maybe it could be a new tradition to have a will read at a social event for the recently departed? As outlandish as these ideas may seem, our customs change over time - influenced by the tastes and preferences of people. Americans like convenience and America, Inc. likes to sell at every turn - watch out for commercialism of this most sacred time, too.

I think having a positive venue for a wake and funeral sends the message that the family continues to live. I think obituaries could be a bit more truthful as well to avoid the inevitable "how did she die?" question. How hard would it be to add a short line that says "Mary was walking along Main Street last Tuesday when a tiger that had recently escaped from the zoo caused her untimely death." I will say I like what the Boston Globe has done with their obituary section recently. The Boston Globe has added the option (for a price) of adding a photograph of the decedent. I am always drawn to these people's pictures. Today, sadly, there was a two month old baby's picture. The other day there was a Marine in his dress blues that is not coming home from far off lands. It's good to see that the dead are like us, not only old, but all ages. Death is a great equalizer - it doesn't know class, race or creed. It is one of life's certainties, and I believe the more we embrace proper estate planning, communication between family members about last wishes and the inevitability of death, the less stressful our deaths will be for the loved ones that we leave behind. Those who know me know that I love to boat and fish in Boston Harbor. A funeral director friend of mine has a boat berthed near mine, her name is "No Wake Today."

• Print
• Comments
• Trackbacks

I'll admit I stop by my local cemetery from time to time to visit my father's grave. Half the time I am there with my first grader to look for the fox that lives among the stones. But the rest of the time I'm there to talk. And I'm not alone. Invariably, others are there to talk too.

Talk? I don't expect a response from my father. He was never much for chatting. What I get is the sound advice and comforting reassurance that only seems to come from saying things out loud.

I tell him how I feel about client or family situations. I tell him of important decisions and of the choices before me.

On the darkest days I tell him I don't know what to do or where to turn on a serious issue. Despite no voice responding, I can't think of a time that I didn't leave his graveside without a clearer view of what was needed.

Some people speak to their plants, cats or the ashes of their dear-departed. I say it's all good. No matter your religious beliefs about the spiritual world, I believe there is good karma in connecting with other states of being.

Often in probate practice, I see greed as the sole driver. Self-interest and a grab-it-all mindset are the hallmarks of too many heirs. So many react to the loss of a loved one as a perfunctory event - like getting an inspection sticker for their cars, I want to scream. SCREAM!!!

The screaming leads more to the question than the answer. Is it the deceased's failure to be a good parent? Or is it the survivor's failure to be a good child? In many cultures, if not most, one's ancestors and one's connection to them is paramount to a good life.

As I talk to the pink granite block emblazoned with my family name, I know unless I connect with my own family while I'm alive, they'll never gain any wisdom talking to the marking stone over me once I'm gone.

• Print
• Comments
• Trackbacks

October is my favorite month of the year for estate planning. It is the essence of fall. It is the gateway to winter and analogously, to the Winter of our lives.

October as a time of reflection on life is not lost on Major League Baseball. MLB's slogan for October is "I Life for This". Well, I don't. I mean, I do love baseball. I love the Red Sox. I especially love October baseball. But I don't live for 18 men playing ball for millions of dollars. Baseball is a pastime.

What do we live for? Elders, facing the scourge of aging and the loss of those dear to them, lose clear reasons to live. It is not uncommon for me, when visiting an elderly client at a nursing home, to hear weak voices telling anyone who will listen they want to die.

We live for hope. We live for tomorrow. Without that, death is a comfortable option. What's bothering me is the power of the media, America, Inc., and the organized establishment's role in shaping what they thing retirement and aging should look like for millions of Americans. They employ a cadre of image and word specialists to create viewers, customers and members of organizations.

Take AARP, which after an odd name change, no longer stands for anything - It's just AARP (rhymes with carp, except in Boston where it rhymes with no work in our vocabulary). It is an organization solely committed to delivering the most efficient database of Americans old enough to obtain personal credit (OK, they have some standards - you need to be of "retirement" age, which is defined as age 50).

AARP is essentially a big insurance agency, a vast department store and pharmacy with a direct mail business for every pill pusher, gadget and ointment and older American needs to make life complete. Their mission is to sell and to promote the sale of all manner of tschochkes they think older Americans need to live a good and active life.

The media likewise are entwined with pharmaceutical giants in an effort to maintain fear in the minds of the aged so they can sell them salves and potions.

My generation rarely watches the evening news. How do I know? Well, frankly, how many of us need Lipitor, Viagra, Zoloff or any other little pill? The media machine's news function is largely sponsored by Merck, Pfizer, Novartis and others pandering their trademarked brand for all that ails you.

Many older people watch the news out of fear the world is coming to an end. And it is. Just not today, or in your hometown of Suburbia, USA. I think all of this careful and manipulative branding of what it means to age in America is going to be lost wholesale to the baby boomer generation's unique perspective on things. For one, improved health and increased personal debt will keep them in the workforce for many more years. Retirement, what's that?

Technological connections and improved access to information should help boomers comparison shop for services and test the vapid claims of unscrupulous salesmen.

Last, boomers are tired of being boomers. Seriously, how many times do you need to hear you were the product of your parents' pent-up sexual energy, after years of war in foreign lands? These people were rock'n rollers, hippies, yippies, yuppies, dinks and now boomers. They have had enough of labels. I'm looking forward to watching boomers break the media-imposed aging model AARP and the pharmaceutical machine has so carefully created for them.

• Print
• Comments
• Trackbacks

If I had a theme song for my Massachusetts elder law and estate planning practice this would be it. I heard it on the radio commuting to work last week and it has stuck with me.

I turned on the evening news

Saw an old man being interviewed

Turnin' 102 today.

Asked him what's the secret to life

He looked up from his old pipe

Laughed and said all I can say is:

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

Is there in bed and you're prayin' God takes you instead

Trust me friend, 100 years goes faster than you think

So don't blink.

Well, I was glued to my T.V.

When it looked like he looked at me

And said, "You best start puttin' first things first."

'Cause when your hour glass runs out of sand

You can't flip it over and start again

Take every breath God gives you for what it's worth.

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

Is there in bed and you're prayin' God takes you instead

Trust me friend, 100 years goes faster than you think

So don't blink.

So, I've been trying to slow it down.

I've been tryin' to take it in.

In this here today gone tomorrow world we're living in

So...

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

Is there in bed and you're prayin' God takes you instead

Trust me friend, 100 years goes faster than you think

So don't blink.

No, don't blink.

Don't blink.

Life goes faster than you think, so don't blink.

Life goes faster than you think. Don't blink

Don't blink

Life goes faster than you think...

• Print
• Comments
• Trackbacks

The son of philanthropist Brooke Astor was accused in an indictment unsealed Tuesday of plundering his mother's $198 million estate and conspiring to have the Alzheimer's-stricken socialite sign a new will leaving her fortune to him.

I guess this shows us that the rich are just like everyone else. Greed is no more a condition of poverty than hunger is a condition of obesity. Humans with a nature to cause harm to their families for their own profit come in all shapes and sizes. Brooke Astor is no more immune to her family's greed than any other elderly woman suffering from the ravages of dementia. Probate, estate taxes and trust issues for the rich are the same as for everyone else - just magnified by the scale of wealth.

A big part of our estate planning process is developing strategies to prevent abuse of the elderly. Using co-fiduciaries, professional trust services and checks and balances built into our documents, we are able to give our clients strong lines of defense. Brooke Astor may have had access to the best lawyers in the United States because of her wealth, but without an understanding of elder law and the dangers of elder abuse, even the best lawyer in Boston cannot imagine the opportunity for fraud within a parent-child relationship. Our experience tells us that the "big firm" lawyers are ill equipped to deal with what is often more social work than legal work.

Our practice is to approach mental health issues in our elderly clients as a multi-disciplinary issue. Working closely with medical providers, financial planners and social workers we craft bespoke plans that respect each individual client's unique personal situation. House, hospital or nursing home calls are commonplace in what we do, how else could we know how our clients live? Ask your downtown Boston lawyer to visit the nursing home on a Saturday morning.

In her day Brooke Astor, was a great philanthropist. In a great twist she will continue to be philanthropic through her own son's misdeeds by giving America an example of greed to the umpteenth degree. For elder law lawyers, Santa Claus could not have brought a more perfect Christmas present for elder parents than the example of the consequences of poor planning. Do your grandparents, parents and self a favor and give the affordable Christmas gift of good estate planning. And, yes, I would be happy to sell you a gift certificate for estate planning!

 

• Print
• Comments
• Trackbacks