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

I admire Roto Rooter. Few other businesses are so financially successful using a single tool - such as the spiraling drain cleaning tool. As an elder law and Medicaid attorney in Massachusetts I am starting to feel like Roto Rooter. New Medicaid regulations and qualifications have made it nearly impossible at the time of nursing home admission to protect an elder's assets. Despite the strict guidelines and pre-planning requirements of the Deficit Reduction Act and interim state and federal regulation, we are still winning the battle of family asset protection.

 Of course, our one tool in Massachusetts is the Medicaid Qualifying Immediate Annuity, also called Single Premium Immediate Annuity (or SPIA). These annuities are quite simple, the Medicaid applicant or their community spouse contributes a lump of funds to an annuity account with an insurance company and the insurance company returns the money to the annuitant over a fixed period of time consistent with their life expectancy under the HCFA life expectancy tables. When the annuitant dies then either the family or the Commonwealth of Massachusetts Division of Medical Assistance gets the remaining funds depending on very specific rules.

 But there are several other options for elders and their families facing long term care financing and Medicaid qualification. There is an exception for the principal residence where the nursing home resident's spouse is still living in the home. This exception also applies to siblings, minor, blind or disabled children. The other major exception is for children who are caregivers for their parents (the "caregiver exemption") in the two years prior to the elder's nursing home admission.

 From an estate planning perspective and for non-real estate assets, our choices are more limited. Besides the Medicaid Annuity, Special Needs Trusts can also be used without disqualification for anyone in the Medicaid applicant's family. Disqualification for Medicaid is the term used by the Massachusetts Division of Medical Assistance (MassHealth) to describe the time period for which a Medicaid applicant or nursing home patient is ineligible for Medicaid benefits.

 Of course, advance estate planning can solve a lot of these Medicaid qualification issues. Generally, if an elder client is in good health,  under 80 years of age and has the wherewithal to pay annual premiums, then Long Term Care Insurance is a great option. Premiums can be costly on a cash basis, but I have never had an elder law client who had has a claim with her Long Term Care Insurance company complain about the benefits. The benefits are generally cash payments for home care and nursing home care. Many people call Long Term Care Insurance "nursing home insurance," but it is really much more than that as it also includes a home- care benefit.

 With the same foresight as an insurance applicant, elder law clients at Gosselin Law are often advised when they are healthy (or as I like to say "when you are still buying green bananas") to set up irrevocable trusts that preserve the step-up in tax basis and remove the elder law client's assets from inclusion in their resource calculation by MassHealth. The "trick" is that after setting up and funding these types of Medicaid trusts, the elder is not elegible for Medicaid for five years. At one time the waiting period was much shorter on transfers and trusts, but now, it is a uniform five years before the trust's Medicaid "protections" kick in.

That's about it for asset protection and Medicaid qualification. Whatever you do, do not apply for Medicaid without speaking with an elder law attorney, no matter how much the nursing home pushes you to sign papers or an application company, such as Medi-Services encourages you to 'just get it done' - keep your pen in your pocket until you speak with an elder law attorney. If you are facing the spectre of paying the outrageous costs of a Massachusetts nursing home from your own funds, please call Gosselin Law for a free telephone consultation to review your Medicaid asset protection options. Our phone number is (toll free) 877-325-6746 or 781-729-0313. We have offices throughout Massachusetts (Boston, Hingham, Wellesley, Winchester and serve Amherst, New Bedford, Barnstable and Pittsfield through satellite and in-home appointments.

 

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I admire Roto Rooter. Few other businesses are so financially successful using a single tool - such as the spiraling drain cleaning tool. As an elder law and Medicaid attorney in Massachusetts I am starting to feel like Roto Rooter. New Medicaid regulations and qualifications have made it nearly impossible at the time of nursing home admission to protect an elder's assets. Despite the strict guidelines and pre-planning requirements of the Deficit Reduction Act and interim state and federal regulation, we are still winning the battle of family asset protection. If you are facing the spectre of paying the outrageous costs of a Massachusetts nursing home from your own funds please call Law for Life for a free telephone consultation to review your Medicaid asset protection options. Our phone number is (toll free) 877-325-6746 or 781-782-6000. We have offices throughout Massachusetts (Boston, Hingham, Wellesley, Winchester and serve the Worcester, Springfield, New Bedford/Fall River, Barnstable and Pittsfield areas through satellite and in-home appointments.

Often our only tool in Massachusetts is the Medicaid Qualifying Immediate Annuity, also called Single Premium Immediate Annuity (or SPIA). Although pooled income trusts have their place, we are not convinced that they will be available much longer as an emergency planning tool. These annuities are quite simple, the Medicaid applicant or their community spouse contributes a lump of funds to an annuity account with an insurance company and the insurance company returns the money to the annuitant over a fixed period of time consistent with their life expectancy under the HCFA life expectancy tables. When the annuitant dies then either the family or the Commonwealth of Massachusetts Division of Medical Assistance gets the funds depending very specific rules.

But there are several other options for elders and their families facing long term care financing and Medicaid qualification. There are exception for the principal residence where the nursing home resident's spouse is still living in the home. Same with siblings, minor, blind or disabled children. The other major exception is for children who are caregivers for their parents (the "caregiver exemption") in the two years prior to the elder's nursing home admission.

From an estate planning perspective and for non-real estate assets, our choices are more limited. There is the Medicaid Annuity (for which Law for Life is recognized as a Massachusetts source for the design and implementation of annuity based plans), but also the use of Special Needs Trusts that can be establish without disqualification for anyone in the Medicaid applicant's family. Disqualification for Medicaid is the term used by the Massachusetts Division of Medical Assistance (MassHealth) to describe the time period for which a Medicaid applicant or nursing home patient is ineligible for Medicaid benefits.

Of course, advance estate planning can solve a lot of these Medicaid qualification issues. If an elder client has good health, is generally under 80 years of age and has the wherewithal to pay annual premiums then Long Term Care Insurance is a great option. Premiums can be costly on a cash basis, but I have never had an elder law client that went on claim with Long Term Care Insurance complain about the benefits. The benefits are generally cash payments for home care and nursing home care. Many people call Long Term Care Insurance "nursing home insurance", but it is really much more than that as it includes a home care benefit that can be even more important to elders in need of services.

With the same foresight as an insurance applicant, elder law clients at Law for Life are often advised when they are healthy (I like to say "when you are still buying green bananas") to set up irrevocable trusts that preserve the step-up in tax basis and remove the elder law client's assets from inclusion in their resource calculation by MassHealth. The "trick" is that after setting up and funding these types of Medicaid trusts, the elder cannot qualify (or apply) for Medicaid for five years. At one time the waiting period was much shorter on transfers and trusts, but now it is a uniform five years before the trust's Medicaid protections kick in.

That's about it for asset protection and Medicaid qualification. It is imperative to speak with a competent elder law attorney such as us experts at Law for Life (our phone number is 781-782-6000 or toll free at 877-325-6746) regarding your personal situation as the regulations are very complex and change often during the year. Whatever you do, do not apply for Medicaid without speaking with an elder law attorney, no matter how much the nursing home pushes you to sign papers or an application company, such as Medi-Services encourages you to 'just get it done' - keep your pen in your pocket until you speak with an elder law attorney.

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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!

 

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How did wealthy Aunt Sally's bequest of $500,000 a year to help stray cats end up going to The Foundation for the Preservation of Home Brewers after she was gone? She had both a will and a trust explicitly spelling out her wishes that were supposed to be followed in perpetuity.

Stewardship is a lost art. As an estate planning attorney I am charged with preserving my clients' intents through various documents, such as wills, trusts and charitable foundations. I guide clients on selecting experienced, competent and reliable fiduciaries. I follow through to know that my clients' estate planning trusts are funded before death to avoid unnecessary probate administration.

A recent New York Times piece reminds me how important it is for me, an estate planning attorney, to see that my clients' wishes are preserved, not perverted by the corporate greed that pervades the corporate estate and trust administration industry.

The Times article shows how many irrevocable trusts, charitable trusts and private foundations are administered by stingy corporate trust giants more interested in collecting fees than serving the wishes of those no longer here. Why give the money to charities? It will only reduce trust fees.

But that is not even the worst part. According to the Times, the wishes of clients are often changed to reflect the wishes of the administrators. The charities specified in the trusts are replaced by charities chosen by administrators as more appropriate. Generous gifts become less so, or even disappear. Why?

Why indeed. The trust industry in the United States got its big start in Boston over 200 years ago with the First National Bank of Boston in 1784. The bank was chartered to serve the banking needs of ship captains, mainly whalers and Far East Traders.

Often the ships would be gone for over a year at a time while the captains' families stayed behind in Massachusetts. As a result, Boston trust lawyers and trust companies were charged with preserving and protecting the wealth of the merchant fleet. Massachusetts developed a great body of trust law, that to this day is unrivaled in any other state.

Silent among those laws is a clear definition as to what a reasonable action would be by a trustee. Certainly the trustees must act reasonably. But because most estate planning attorneys draft trusts with the broadest of fiduciary powers, theses same discretionary powers are often the tool of self serving corporate trustees. The cure? For one, clear language is a good start. I am a strong advocate among the Massachusetts Bar for clear language in all estate planning documents.

Our law firm is partial to English, as opposed to legaldygook, for all our estate planning documents. If you cannot understand the plain meaning of a document after carefully reading it once, it is not clearly written. Secondly, we are proponents of using co-trustees or trust protectors on all trusts and foundations. In this way, there are checks against outrageous unrestrained abuse of power by trustees as outlined in the Times article.

Last, and most important, we provide for removal of the trustee in all of our trust planning, should that trustee fail to perform fiduciary duties. Provisions are made that such a trustee can be replaced by one willing and able to do the job consistent with the language of the trust and the wishes of the client. 

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