Life's Continuum - Law for Life Means from the Start

It occurred to me as an Elder Law lawyer that I am really a lawyer that handles the concerns of life and death generally.  My occupation is literally about life and death situations everyday.  It is how we came upon our new banner of Law for Life.  But as I reflect on what it means to hold such a responsible and important role I am struck by the spectrum that life is, from the smallest twinkle in an expectant mother's eye to an aged man gasping for his last ethereal breath.  In the spirit of being a steward of the very continuum that makes us human, I offer this powerful poem by Robert Frost that to me embodies grief, love, compassion, Men are from Mars and Women are from Venus, and Yankee reserve.  Those that know me know I am a big fan of late 19th and early 20th century literature.

Robert Frost (1874–1963). North of Boston. 1915.

Home Burial

HE saw her from the bottom of the stairs
Before she saw him. She was starting down,
Looking back over her shoulder at some fear.
She took a doubtful step and then undid it
To raise herself and look again. He spoke 5
Advancing toward her: “What is it you see
From up there always—for I want to know.”
She turned and sank upon her skirts at that,
And her face changed from terrified to dull.
He said to gain time: “What is it you see,” 10
Mounting until she cowered under him.
“I will find out now—you must tell me, dear.”
She, in her place, refused him any help
With the least stiffening of her neck and silence.
She let him look, sure that he wouldn’t see, 15
Blind creature; and a while he didn’t see.
But at last he murmured, “Oh,” and again, “Oh.”

“What is it—what?” she said.

“Just that I see.”

“You don’t,” she challenged. “Tell me what it is.” 20

“The wonder is I didn’t see at once.
I never noticed it from here before.
I must be wonted to it—that’s the reason.
The little graveyard where my people are!
So small the window frames the whole of it. 25
Not so much larger than a bedroom, is it?
There are three stones of slate and one of marble,
Broad-shouldered little slabs there in the sunlight
On the sidehill. We haven’t to mind those.
But I understand: it is not the stones, 30
But the child’s mound——”

“Don’t, don’t, don’t, don’t,” she cried.

She withdrew shrinking from beneath his arm
That rested on the banister, and slid downstairs;
And turned on him with such a daunting look, 35
He said twice over before he knew himself:
“Can’t a man speak of his own child he’s lost?”

“Not you! Oh, where’s my hat? Oh, I don’t need it!
I must get out of here. I must get air.
I don’t know rightly whether any man can.” 40

“Amy! Don’t go to someone else this time.
Listen to me. I won’t come down the stairs.”
He sat and fixed his chin between his fists.
“There’s something I should like to ask you, dear.”

“You don’t know how to ask it.” 45

“Help me, then.”
Her fingers moved the latch for all reply.

“My words are nearly always an offence.
I don’t know how to speak of anything
So as to please you. But I might be taught 50
I should suppose. I can’t say I see how.
A man must partly give up being a man
With women-folk. We could have some arrangement
By which I’d bind myself to keep hands off
Anything special you’re a-mind to name. 55
Though I don’t like such things ’twixt those that love.
Two that don’t love can’t live together without them.
But two that do can’t live together with them.”
She moved the latch a little. “Don’t—don’t go.
Don’t carry it to someone else this time. 60
Tell me about it if it’s something human.
Let me into your grief. I’m not so much
Unlike other folks as your standing there
Apart would make me out. Give me my chance.
I do think, though, you overdo it a little. 65
What was it brought you up to think it the thing
To take your mother-loss of a first child
So inconsolably—in the face of love.
You’d think his memory might be satisfied——”

“There you go sneering now!” 70

“I’m not, I’m not!
You make me angry. I’ll come down to you.
God, what a woman! And it’s come to this,
A man can’t speak of his own child that’s dead.”

“You can’t because you don’t know how. 75
If you had any feelings, you that dug
With your own hand—how could you?—his little grave;
I saw you from that very window there,
Making the gravel leap and leap in air,
Leap up, like that, like that, and land so lightly 80
And roll back down the mound beside the hole.
I thought, Who is that man? I didn’t know you.
And I crept down the stairs and up the stairs
To look again, and still your spade kept lifting.
Then you came in. I heard your rumbling voice 85
Out in the kitchen, and I don’t know why,
But I went near to see with my own eyes.
You could sit there with the stains on your shoes
Of the fresh earth from your own baby’s grave
And talk about your everyday concerns. 90
You had stood the spade up against the wall
Outside there in the entry, for I saw it.”

“I shall laugh the worst laugh I ever laughed.
I’m cursed. God, if I don’t believe I’m cursed.”

“I can repeat the very words you were saying. 95
‘Three foggy mornings and one rainy day
Will rot the best birch fence a man can build.’
Think of it, talk like that at such a time!
What had how long it takes a birch to rot
To do with what was in the darkened parlour. 100
You couldn’t care! The nearest friends can go
With anyone to death, comes so far short
They might as well not try to go at all.
No, from the time when one is sick to death,
One is alone, and he dies more alone. 105
Friends make pretence of following to the grave,
But before one is in it, their minds are turned
And making the best of their way back to life
And living people, and things they understand.
But the world’s evil. I won’t have grief so 110
If I can change it. Oh, I won’t, I won’t!”

“There, you have said it all and you feel better.
You won’t go now. You’re crying. Close the door.
The heart’s gone out of it: why keep it up.
Amy! There’s someone coming down the road!” 115

“You—oh, you think the talk is all. I must go—
Somewhere out of this house. How can I make you——”

“If—you—do!” She was opening the door wider.
Where do you mean to go? First tell me that.
I’ll follow and bring you back by force. I will!—”

Cannibalism, Big Boats and Expensive Divorces

They say that cannibalism isn't so bad once you get past the idea that you are eating your fellow man.

As the participants in the real estate services industry (and there are millions, including Realtors (r), Banks, Mortgage Companies, Title Companies, Appraisers, Lawyers, Developers, Builders, et al.) slowly drift off to sleep as our collective life boat drifts aimless at sea, the opportunists among us see meals in the weak and powerless. 

Once inconsequential community lenders look like dynamos as they cruise tortoise-like by the flaming wrecks of the high flying national lenders.  The full time professional loan officers who were in the mortgage business, say, before 1995, are still making a living, a basic, fair living.  Meanwhile, their Johnny come lately stall mates at many a Massachusetts Mortgage Company are hurriedly looking for ways to unload expensive homes, boats and spouses - all the trappings of the greed-fed frenzy that has been the real estate market of the past 10+ years.  This repeats itself in the real estate brokerages, those now echo-chamber like cube farms - no longer filled with divorcees, moonlightling firemen and under-employed second cousins.

From those of us that were in the real estate business the last time it was this bad to those that will tell this story to the next generation - it can only get better.  I hope.

What's in a Name? For Us Gosselins, a lot.

Gosselin is a very common last name in Quebec and in parts of New England. My ancestors were among the first North American settlors from Europe, having settled what is now Quebec City in the early to mid 1500's - yes, a full 100 years before the Mayflower arrived at Plymouth.

I have no Gosselin relatives that I know save for those in my own household. I have no Gosselin siblings and my father was an only child, so I'm always hoping a Gosselin or two will show up and be a cousin. I know that you are out there and I have a family tree, just have not met a Gosselin who is closely related to me.

Which leads me to some Gosselin distant cousins that get a lot of press. Not to mention a couple John Gosselin's with some pretty cool jobs, and a Jon Gosselin who apparently doesn't have a job at all, despite having a wife named Kate and eight children.

By far, Rick Gosselin, of the Dallas Morning News, has the coolest job. Rick Gosselin is considered the "Hall of Fame" scribe for the National Football League and is thought to be the guru of both the NFL draft and the prospects of quarterbacks throughout the league. Long lost cousin Rick Gosselin gets some pretty heavy hate mail from what I can tell as I seem to get dozens of messages a month from football fans confusing me somehow for Rick Gosselin and his often controversial NFL draft predictions. From what I can tell Rick Gosselin comes from good stock, just no clue if he's closely related.

Peter Gosselin used to be up in Maine as a TV reporter, now he's with the LA Times and has a mission to make middle class Americans understand the falling dollar in real terms. Peter Gosselin expertly makes the case for eroding financial stability in America. Since Peter Gosselin is at least from Maine, I bet we are not more than a few degrees of separation.

The number one non-legal search term on the Law for Life Blog? Well, Google says that it's "Jon Gosselin Employment?"; apparently nearly 1,000 people a month are wondering what this father of eight from "Jon & Kate Plus Eight" actually does for work. From my own police work on the web, Jon Gosselin lost a make-work job with the State of Pennsylvania, and now sits at home figuring out how to make a buck off his multiple births. The Dionne quintuplets, a messy affair involving five identical sisters of French Canadian descent (like all of us Gosselins) should teach Jon Gosselin about the tragedy that can come to celebrity for the sake of celebrity. I hope the Gosselin children can sort it all out as they get older. And Jon, get a job.

John Gosselin is the course superintendent at a splendid Donald Ross golf course in suburban Philadelphia, the Aronimink Golf Club in Newtown Square.

John Gosselin is a lawyer in Batavia, Illinois who has been licensed for nearly 50 years.

John Gosselin is a Professor of Mathematics at the University of Georgia.

John Gosselin is designer of pretty cool websites and advertising, his website is www.johngosselin.com, great web address!

This link is quite telling:

http://names.whitepages.com/John/Gosselin

Apparently, John Gosselin is the 180,299th most popular name in America and the 4,611th most common last name, just after Tejada and before Moritz.

My father, also John Gosselin, had a saying that your name and 50 cents could buy a cup of coffee, clearly long before Starbucks!

Reverse Mortgage Alphabet Soup - FHA; HECM; MIP; NRMLA; H.R. 1852

Reverse mortgages are statutory creatures. Reverse mortgages exist because the Congress says that they exist, and so, they are creatures of government standard abbreviations. Just like being at OCS to get your O-1 and then a rack in BOQ for USN-SWOS. For land-lubbering taxpayers, that's Officer Candidate School for Officer Grade 1 (Ensign) and housing in the Bachelor Officer Quarters at Surface Warfare Officer School in the US Navy.

Go HERE for an exhaustive listing of all the terms and features of FHA's (Federal Housing Administration) products and services.

But today's blog is about something far more exciting than abbreviations, although without them the short press release below from NRMLA on the FHA H.R. 1852 HECM modernization plan would be nearly incomprehensible. *********

NRMLA Anticipates Movement on FHA Modernization Bill

NRMLA is hopeful that the FHA modernization bill (H.R. 1852) will start moving in the next couple weeks and be voted on by the full House of Representatives after the July 4th recess.

Sponsored by Financial Services Committee Chairman Barney Frank (D-MA) and Rep. Maxine Waters (D-CA), the bill would: 1) Permanently eliminate the HECM loan cap; 2) Permit HECM for home purchase; 3) Allow HECMs on housing cooperatives; and 4) Require HUD to study the impact of reducing mortgage insurance premiums, and exempting borrowers from paying any MIP if all, or a portion, of the loan proceeds are used to purchase long-term care insurance.

In addition, H.R. 1852 would increase lending limits for all FHA programs, especially in high-cost areas, like California, New York and Massachusetts by raising FHA's maximum mortgage limits to 100 percent of an area's median home price.

Over the past couple weeks; NRMLA has been negotiating with other stakeholder groups to remove a provision that would lower origination fees on HECMs to no more than 2% of the "original principal limit of the mortgage." Stay tuned for further updates.

******** I like to say that we are at the beginning of the beginning for reverse mortgages. As much as reverse mortgages have been around for 40 years in a formal sense (and over 2,500 years in other forms - a short history of the world of reverses is coming soon), reverse mortgages are metaphorically hitting their next threshold in Moore's Law. Which is a nice way of saying that the market for reverse mortgages is growing at an exponential rate - and with all good growing businesses; it's ripe for more government regulation.

H.R. 1852 as set out above, starts to address the initial framework of reverse mortgages - a framework that served us well until now. Reading some of the dicta and side notes of the committees behind this legislation reveals that the government did not expect reverse mortgages to be so successful a product so fast. It makes you almost wonder whether there will be a rush to "irrational exuberance" over reverse mortgages. I don't believe that the market will ever become large enough to impact the overall economy too much, but it will be interesting to watch seniors taking responsibility for their own expenses from their own wealth and not relying on government programs or family members for their living expenses. A reverse mortgage is the ultimate libertarian gesture - I will take care of myself, thank you very much. This should be really popular in New Hampshire.

Looking in the crystal ball I think that you will see MIP (mortgage insurance premium) get rolled into the interest rate of the reverse mortgage loans and all but disappear. Despite NRMLA's obvious incentives in maintaining high loan origination fee caps, you will see a study and drastic reduction in the overall cost of originating reverse mortgages. I think that price competition, which has essentially destroyed the conventional forward mortgage business, will come into the reverse mortgage market. This price competition will at first cause the early entrants to lose market share and gross revenue and for new entrants to take business. Over time it is my opinion that the reverse mortgage lenders that embrace seniors, understand the good karma of reverse mortgages and only sell to those that truly need reverse mortgages will be rewarded with lasting market share. When banks take reverse mortgages as a product focus, especially Bank of America, we will see a transformation of the marketplace that will further and permanently reduce the costs (and therefore origination revenue) of reverse mortgages across the board.

Just so you all know I will be on vacation for the next couple of weeks, so please expect pretty light blogging. Happy 4th of July.

Elder Law - Mohegan Sun's HALF a Penny for Your Thoughts

A reverse mortgage to feed a slot machine? Can a car alarm reduce depression in elders? What can you buy for half a penny? I have just returned from an estate planning conference in Las Vegas.
This was a conference like many others where we were trapped in a windowless conference room for hours on end as speakers droned on about the latest innovations in avoiding estate taxation and applying new techniques to serve estate planning clients. Yawn. Boring. A far better lesson in estate planning and elder law was available just outside the conference room doors. Those of you that have been to Sin City know exactly what I am talking about; those that don't are better off. Las Vegas, and gambling halls generally, have become the churches of Godless and desperate people. The vast majority of those in casinos are not there to blow off a little steam or throw caution aside for a few hours of distraction. No, the people who are drawn to this Mecca of Neon and Nicotine come out of their own desperation. They come to be winners. The losers in modern American life - the sick, the unattractive, the decrepit, the old, the mentally ill - the losers come to have a chance, just for a little while, to be winners. They come for hope. Hope that the machine will tell them that they are jackpot winners by making noises and illuminating bright lights.

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.

Elder Law Reverse Mortgages and Legal Capacity

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.

New Mortgage Regulations in Massachusetts - Attorney General Seeks Reasonable Treatment for Borrowers

I am happy to report that the Attorney General has promulgated new regulations to protect mortgage borrowers in Massachusetts.  The full text of the regulations can be found HERE.

The gist of the regulation is that Massachusetts will no longer permit mortgage lenders and brokers to make loans on unreasonable terms or that are clearly loans that would be unlikely to be repaid by borrowers.  There are also provisions for disclosure and translation for non-English speaking borrowers.  Hooray for Martha Coakley and the Consumer Protection Division of the Massachusetts Attorney General's Office!

Reverse Mortgages or When Uncle Sam Moves Into the Guest Room - Medicare, Social Security and Medicaid Long Term Care Cost Money, You Know?

Reverse mortgages are bad mortgage products. Reverse mortgages cost too much in closing costs. Reverse mortgages drain the equity from elders' estates. Reverse mortgage originators prey on the weakest among us. Or so pundits that sell houses, annuities and all manner of ignorant self interested "protectors" of the elderly repeat as if a mantra to ward off the evil of reverse mortgages. Of course, the truth could not be further from their fears.

The US Government needs the baby boomers to embrace reverse mortgages. After all, the national debt has more numbers than my Comcast account, Halliburton needs to keep profitable in Iraq and Americans are living (and getting Social Security and Medicaid benefits) longer than ever. The actuaries tell us that it's not the interest on the national debt, foreign aid or war that will bankrupt the US Government, but rather Medicaid has the power to overwhelm the entire GDP. Where is the money that will pay for all of Uncle Sam' hospital bills?

Medicaid is an issue for the reverse mortgage industry, especially for the reverse mortgage originators that don't know their products and underwriting well enough to advise their customers on the traps. I have been featured recently in the Mortgage Press and the National Reverse Mortgage Lenders Association national teleconference and newsletters as an expert in the intersection of Medicaid regulations and the origination of reverse mortgages.

Here is one of the articles, excerpts from an interview with Atare Agbamu (who writes extensively on reverse mortgage issues):

Traps for the Wary: Reverse Mortgages and Healthcare Benefits -- a conversation with Elder Law Attorney John Gosselin

By Atare E. Agbamu, CRMS

They say old age hardly comes alone. It comes with issues. The same can be said of reverse mortgages, the new pillars of retirement security in these precarious times.

Reverse mortgages come with issues, government healthcare benefits issues. The relationship with government healthcare benefits is deeper and more challenging than most originators and customers suspect.

To help us understand the connection and its implications for originators and customers, I spoke with Winchester, Massachusetts-based elder law attorney John T. Gosselin.

The Managing Attorney of his own law firm, Gosselin & Associates, P C, with offices in Massachusetts and New Hampshire, Mr. Gosselin is one of a few lawyers, in my experience, who really understand reverse mortgages, particularly how they mix with other elder law issues.

Besides overseeing a vibrant probate administration and elder law work, Mr. Gosselin runs a thriving real estate practice, acting as counsel or closing agent in more than 20,000 transactions, advising clients on purchase and sale agreements, mortgages, financial, and title disputes.

A member of the National Reverse Mortgage Lenders Association (NRMLA), Mr. Gosselin has advised and represented lenders in reverse mortgage situations for more than 10 years.

As you will find from our conversation, Mr. Gosselin has thought these issues through. His knowledge, insights, and suggestions will help you serve your customers better. They could help your company avoid some difficult issues too. [Disclaimer: Nothing in this article should be considered legal advice. Seek competent counsel for your unique situation.] The following is a transcript of our conversation.

Atare E. Agbamu: John, what is the loss of Medicaid Eligibility risk for the typical reverse mortgage borrower?

John T. Gosselin: The big risk is being over asset. The way you qualify for Medicaid benefits is to be poor. Medicaid is welfare. So in order to qualify for welfare, you need to be poor. And the government defines poor as a combination of assets and resources. And they define it all as available resources. That's the term that is used. If you have more available resources than the limits that are allowed by law, you cannot qualify for benefits.

The first risk is a borrower holds too much cash in their name, by virtue of holding too much cash, either through a lump-sum distribution from a reverse mortgage or drawing too much down from a HECM [government-insured reverse mortgage] or drawing a small amount from a HECM but not spending it. A lot of our borrowers in the reverse world are used to living on very low amounts of money. So when they start drawing from a HECM, they feel uncomfortable spending it. I have seen that happen where the borrower accumulates relatively modest payments over a short period of time to put them over the asset limits.

The asset limit, commonly, for an individual person, is about $2,000 in liquid resources, in addition to their principal residence. They are allowed to have a principal residence, but they can't have more than $2,000 in total liquid assets at the end of any month. So at the end of any month, they can't have more than $2,000 standing in their name and receive Medicaid benefits.

So the risk is that they are going to draw down or borrow more than what is allowed. By doing that, if they are over age 65, as almost all our reverse borrowers would be, it will automatically put them in situations where they are either going to be disqualified for benefits and/or subject to reimbursement for benefits they have already received. That is the risk specific to Medicaid.

There is another risk which is also related, Supplemental Security Income (SSI), which is an additional welfare program. It is intended mainly for people who are very poor, who have neither Social Security nor virtually any social security income. This is another scheme which the federal government provides for its poorest people. Generally, these are people who never paid into the system by working at jobs which provide for federal social security and insurance benefits. It is not an insurance program; it is a federal welfare benefit. And that program has very strict income guidelines.

Although a HECM advance doesn't disqualify them as income, there is a risk of going over the asset limits. There is income that is assumed to come from those assets. There is a formula that is done. If they are holding too much in assets, they can be disqualified from SSI. Again, holding too much cash is a problem. Having money in a given month is not a problem. They could draw down tens of thousands of dollars if they spend it for their own personal needs, their care, and their protection. They can really spend it for anything. They are spending an asset that is protected, which is their house. At the end of 30 days, they better get that asset back under $2,000. At the end of each month, their cash has got to be under $2,000. And they could not have accumulated other easily liquidated assets, like buying jewelry, for example. They can't buy more than one motor vehicle for their own use. They can't accumulate collectible assets. They can't go out and buy antique furniture that is going to carry a cash value or easily liquidated value. So they are somewhat restricted in how they use their funds, but not terribly.

One other dimension that people should be aware of (I don't expect this to occur often) is that the tenure payment could be construed as income. We usually say that reverse mortgage payouts are never income, that it is always drawing against the value of the house, but the reality is that when the balance of the mortgage exceeds the value of the collateral, it can be recognized as income; because, effectively, it is no longer a loan because the proceeds are exceeding the value of the collateral. The IRS would recognize that as a form of taxable annuity income. That could run into some problems.

Now why I say it shouldn't come up much is that the tenure payment is fairly conservative. The formula used to come up with the numbers really anticipate someone living quite some time before the loan gets upside down; but, in a declining real estate market, you could, potentially, see that become an issue in the future.

AA: From your experience, how valuable is Medicaid Eligibility to the average senior person? For it to be a serious loss, it has got to be pretty valuable.

JG: For the average senior, they are probably going to be receiving Medicare benefits because that is an insurance program that people pay in when they work, and they work for wages. The vast majority of people over 65 are on Medicare benefits.

The Medicaid benefits we are talking about will affect reverse mortgages. It could be supporting a spouse that is in a nursing home. For example, if we have a wife that is in the community and a husband in a nursing home, the wife in the community (it varies by state) on average, is allowed to keep the principal residence and approximately $100,000 in assets. It does vary. More or less, it is $100,000. If she goes over the asset limit, she can disqualify her spouse for the benefits that they are receiving for the husband's care and possibly be forced to reimburse benefits already received.

Most often, I think, when a spouse of someone who is borrowing on a reverse is in a facility [nursing home], they are disqualifying the spouse often unknowingly. This is one of the traps for originators. They should inquire whether or not a spouse is in a nursing facility and determine how that spouse is paying for their care. Sometimes the spouse will no longer be on title so the topic does not come up unless a direct inquiry is made.

There are other ways to pay for nursing care. One of them could be VA [Veteran Administration]. The VA is very low cost, and it doesn't really impact reverses as it is tied to service record and not only financial need. There are also religious and community organizations that provide unique living situations for elders, many of these require turning over large lump sums in favor of lifetime care contracts. Home care services are also coming along that will essentially enable seniors to have nursing care at home on a somewhat more affordable basis. Another place Medicaid comes in is community Medicaid.

Community Medicaid is a program that supplements Medicare. Again, it is generally for the poorest people, both seniors and those under 65. The people whose income and ability to pay for what Medicare doesn't pay for is compromised, so they would go for Medicaid benefits in the community, or they need some special services or in-home care through a variety of community programs.

There are in-home care programs that are coming up every day now in every state, where instead of going to a nursing home, the state will subsidize a certain amount of in-home care. It is that in-home care we need to be concerned with because if it is under the Medicaid program, it is subject to reimbursement. Think of Medicaid like a loan from the government.

AA: So this is a very valuable program for the average senior because it protects their health, right?

JG: The Medicaid program we are talking about is a community health insurance benefit. This pays for every aspect of medical care. It pays for prescriptions. It pays for hospitalization. It pays for virtually any medical need of an elderly person. You could have reimbursement obligations in the millions of dollars for somebody who has a serious illness.

You could have someone who has MS [multiple sclerosis], Lou Gehrig's disease, or a form of cancer that has received hundreds of thousands or even millions of dollars worth of care through the Medicaid system. Yes, it is absolutely a valuable benefit.

To lose the benefit for people who are receiving the benefit would probably be catastrophic. They could put themselves in situations where their medical debt could consume the value of their house. If they have no other means of paying for their medical debt, they could be forced into bankruptcy for their medical debt.

The US government needs to find a way to use the wealth stored in home equity for people's care, I think we'll see a much simpler reverse mortgage product coming very soon, like a low interest rate reverse mortgage that's sold directly or at least wholly subsidized by the US Government to get at people's home equity for elders' medical and home care needs.

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Elder Law - A Reverse Mortgage Lawyer at Home

Over the years I have learned that elder clients are not so much disturbed about their eventual deaths as they are about changes in their lives as they age. I think it's true about houses too.Just yesterday I sat with two elderly sisters who have lived together in the same house for their entire lives (a combined 187 years!!). One of the sisters is seriously ill with a prognosis of about 6 months to live while her older sister has mid-stage dementia and no longer recognizes her sister.

It is time for them to move to a nursing home, but how do they leave their home of so many years? Who will tend the roses? How will the birds (and squirrels) make it through the Winter without their help? Will the new owners be able to make that quirky furnace run properly? Does The Globe deliver to nursing homes? These are the real questions I was asked. I couldn't bring myself to tell them that the house will likely be bulldozered in favor of a couple of townhouses.

I believe that there is a karma to a house, good and bad. When I am working on probating an estate I am often called to go in and evaluate properties. You can almost hear the children singing happy birthday, the puppy chewing the corner of the good oriental rug, the smell of grandmother's garlicky tomato "gravy" for Sunday dinner. Sometimes I hear the raised voices of a bad marriage fueled by alcohol and crushing debt, or the long suffering of a COPD patient dying slowly before their loved ones, and all too often the nightly crying of a lonely widow pining for her long lost bedfellow. Are there ghosts? Is it spirits?

In this modern age so many people think of their houses as mere way stations as they are transferred up the corporate ladder. Or perhaps they never find the family's home as they feel compelled to upgrade their house and furnishings in each new wave of fashion, like shoes or hairstyles. I feel sorry for people who do not have the patience to impart their personal signature on a place; stay a while, you'll like it - and it will like you back.

From a financial perspective, those clients that have stayed in their homes for many years and have been able to pay off their mortgages one payment at a time enjoy much more financial stability than those clients that have progressively taken on more and more mortgage and other debt to acquire real estate they think will make them 'happy'. My Massachusetts legal advice to first time home buyers? Find a happy house. Spend a couple of hours enjoying tea in its living room with the lonely widow before your closing. Ask to keep a photo or chatchke of the seller as a piece of goodwill. Leave a little corner of that awful wallpaper. Stay in the house as long as you can, feel the good karma. And when you sell that happy little house, shed a tear as you drive away.

Elder homeowners' advice from a Massachusetts lawyer? Stand your ground. Don't sell your house until you cannot make up the stairs or you can't get a neighborhood boy to shovel the snow. If the money runs out, use a reverse mortgage to tap that hard fought equity. Take care of yourself, first. Don't let a real estate broker convince you that leaving the house is the right thing to do. Make sure you believe that it is the right thing to do. Ask your kids to move home with you with their families. This was always the way in the old days, and it wasn't such a bad idea.

AARP Nursing Centers of America - (Baby) Booming Business

I was mulling what nursing homes will be like when it's my time for one. After all, my work brings me to these homes almost every day.

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.

Reverse Mortgage - A Happy Pill?

Can a mortgage make you happy? As an elder law lawyer in Massachusetts I see the worst of the human condition on a daily basis - depression, debilitating illness, greed, elder abuse, death. Seldom is the lawyer brought in to celebrate good news with an elder law client. The most common characteristic of our elder law clients is depression. Whether caused by isolation, grief or worry depression is epidemic among the elderly. It is particularly noteworthy in elders that live alone in their own homes.

It's difficult to know which is the proverbial cart and which is the horse, but it would seem that aside from grief over the loss of a spouse (often the husband has passed first), the isolation and worry are caused by financial insecurity. When an elder lacks financial resources to purchase groceries let alone take part in ordinary social rituals (church, bingo, social clubs) for fear of the stigmatization of poverty they withdraw from the very community that should be there to support them emotionally in their time of need. In most elders' minds American society rewards financially successful people with acceptance and shuns those that cannot achieve their own financial security.

Over time this withdrawal from community compounds the issues of limited financial resources and depression. The further effects of malnutrition, reduced medical care (often in the form of splitting pills to non-therapeutic doses) and the physical dilapidation of the elder's home leads the elder to long term care facilities and being forced to sell their home in an unplanned manner. The elder's "house rich" circumstances control the situation and the inevitable outcome. Many elders have children who lack either the means or will to provide financial aid to their parents (if they could provide financial support to their elder parent homeowner, I can recommend looking at the new program offered by Circle Lending (not a lender) called Family Advantage - it's basically a privately funded reverse mortgage). While selling the home is always an option it seldom helps the elder and often further sends them the message that they have failed to maintain the lifestyle to which they had worked for throughout their lives. I have been witness to miracles brought about by elders making the decision to help themselves by obtaining a reverse mortgage. Contrary to the conventional "wisdom" that has shrouded reverse mortgages for years; reverse mortgages are good solutions in the right situations. "You mean I will receive $1,100 every month for the rest of my life? - I'm going to start swimming again at the Y." That is what I heard just yesterday at a reverse mortgage closing.

By being able to tap the equity in the real estate that they own elders can access value without disrupting their personal culture and well being by selling their home. It is an empowering thing to be given freedom from lingering debt or years of insufficient income. Anecdotally, I have seen many elder law clients of my law firm emerge from their funks and indeed their depressions, to get back on their feet using their home equity. Contrary to some popular thinking, despite the cost of obtaining a reverse mortgage (nothing in this life is free from what I can tell) and the thought that there will be less inheritance left for the aforementioned good for little children; reverse mortgages are lifelines for the elder community. Reverse mortgages solve problems. Reverse mortgages unlock the paper appreciation in real estate over a lifetime of hard work. Reverse mortgages are the friend of the elderly. Reverse mortgages make elders smile. As I work further towards building a strong presence in the blogosphere, I want to thank my hundreds (thousands?) of readers for keeping me moving in the right direction. Soon you will be seeing a whole new blog, indeed a whole new blog experience, as we migrate this simple site to LexBlog, the leading website for blogging lawyers. LexBlog will provide me with substantial software resources so that I can incorporate many new useful features to my blogs. The topics will remain the same, although I am now working with several reverse mortgage lenders on bringing new lending programs to the market so I hope to be a resource for the reverse mortgage community on trends and traps in the industry. I will also continue to provide clear insights on the risks of dying without an adequate estate plan and the accompanying costs and hassles of probate in Massachusetts. Thanks again for your continued support!

Law for Life Comes to Life!

Law for Life is officially the new street name of Gosselin & Associates, P.C. and Gosselin Law, our brand if you like. Our completely renovated website at www.lawforlife.com has been carefully planned to be the easest and most thorough site on elder law matters on the Internet.

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Tim Russert - The Day Our Voice Died

Tim Russert's sudden death from a heart attack upset me more than the death of any public figure in a long time. Tim Russert was one the few mainstream broadcast journalists (other than a few dinosaurs like Tom Brokaw, Dan Rather, Leslie Stahl and Barbara Walters) who you could count on for true grit and substance.

At the time I heard of Tim Russert's death I was with a group of 20-something lawyers working on a complex Medicaid planning case. I got a CNN Breaking News flash and I announced it to the room. "Who is Tim Russert?" "What band was he in?" They sincerely did not know him, or at least his name, they feigned knowledge upon seeing his telltale Irish face. They admitted to getting their news and opinion from short clips on the internet. The sound bite generation. How can you really understand an issue unless you drill down and know the facts? Tim Russert was a master interviewer - no doubt from his legal training and working class roots.

So what else died with Tim Russert? In an America where the average person's attention span is just slightly greater than that of a gnat, Tim Russert's death represents nothing short than a great loss to mainstream intelligentia. Not to say that Tim Russert was a nerd or stuck in an ivory tower, far from it, but he was someone who demonstrated everyday the inquiry that America needs to make of its leaders. Jay Severin was in tears for most of his daily talk show on WTKK (96.9) in Boston. Jay and I have little in common from the perspective of how we think America should run, but we agree that Tim Russert asked the hard questions and now there is a void.

I would be failing my loyal blog readers if I did not point out the obvious in a sudden death like the death of Tim Russert - plan for it. No matter who you are, how healthy and robust you may be - if you have loved ones or property plan for your death now. At least have a simple will, but preferably take the time to do what Tim Russert did with political figures - ask the hard questions, demand sober thinking, get to the truth in your own life.

Tim Russert, I wish we had had time for a beer.

General - Sir Richard Branson - Not a Virgin Any Longer

 

I had the good fortune recently to meet Sir Richard Branson in Boston at the launch of his great new company, Virgin Money. Well, not an entirely new company, it's really Circle Lending re-branded as a unit of the Virgin Empire. You should check out their site at www.virginmoneyus.com.

I have been working with Circle Lending for quite a while. For most of the time that I have known them they have been a sleepy little company with a great idea that was hard to communicate to the always cluttered marketplace. In simple terms, Virgin Money documents loans between family and friends. When I first heard of their business model I thought that it was an act against nature. Seriously, how many people borrow money from their mother with the intention of actually paying her back? Let alone with interest.

Virgin Money US is counting on lots of people to start making their intrafamily loans legit. So Sir Richard and I got to hang out and discuss the status of AIDS in Africa, the British banking system's need for increased consumer confidence in an unsettled world economic setting and the use of biofuel in his Virgin Atlantic 747's to reduce emissions.

Ok, we didn't reach all the topics that I had hoped to, but he was a charming conversationalist and a genuinely nice human being. Virgin Money is looking to help ordinary Americans get access to sophisticated loan products, including the classic Circle Lending family loans, but also complex loan products that should dramatically change the borrowing landscape and particularly hit the traditional banking business square between the eyes. A wake-up call is just what the American banking industry needs. Loans should be made to people who can pay them back. Real terms for real people. Virgin Money gets it. Richard Branson gets ordinary people. He knows that his brand only has value if it delivers unique and true value to consumers. Richard Branson and Virgin do not fake it.

Law for Life Comes to Life!

Law for Life is officially the new street name of Gosselin & Associates, P.C. and Gosselin Law, our brand, if you like. Our completely renovated website at www.lawforlife.com has been carefully planned to be the easest and most thorough site on elder law matters in cyberspace. Please let me know how you enjoy the new site!

Who's Your Daddy? - Elder Law Qualifications and Paternal Diminuitives

 
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'.
 

After the Purchase & Sale Agreement, How to Take Title on Your Deed

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 proper