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

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!—”

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MY LIVING WILL

Last night my wife and I were sitting in the den and I said to her,

'I never want to live in a vegetative state, dependent on some machine
and fluids from a bottle to keep me alive. That would be no quality of
life at all, If that ever happens, just pull the plug.'

So she got up, unplugged the computer, and threw out my wine.

:)

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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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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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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.

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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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The Law for Life blog has had many new readers lately. While we welcome them all, the sad fact is many are desperately searching for help because they have received notice of foreclosure proceedings against them.

They are frequently in difficulty due to increased mortgage payments caused by rising interest on adjustable rate loans (ARM). These increased mortgage payments are forcing many toward foreclosure and what is known as a "short sale." It is called a short sale, because the money from the sale of the home, is short of what is owed. It is a no-win situation for both borrower and lender. We can help.

Frequently, borrowers panic when they get that first foreclosure notice, instead of either calling the lender on their own to ask for more time or for help, or by consulting an attorney experienced in this area of law. We have helped many homeowners in exactly these kinds of situations and we may be able to help you. There is no charge for finding out.

The lenders do not want to foreclose on you any more than you want to be forced out of your home. Often there is room for negotiation that will involve compromise on the part of both sides. That's exactly where our skilled and experienced staff can help most. But start early, do not delay.

The worst thing a homeowner who gets the initial notice of foreclosure can do, is fail to communicate with the lender. Yet, many homeowners simply panic, hide, clam up or do nothing when the foreclosure notice arrives.

If you feel you can no longer support the payment on your mortgage and you are in danger of losing your home, we are available to discuss your situation and to help you find out what your options are. Often we can intervene on your behalf and negotiate settlements with lenders. In many cases our fees are included in the lender's expenses.

We recognize the stress and pain that comes from foreclosure. Our staff is experienced in handling these problems for clients. Often, just knowing exactly what the procedures are and the timetable for what will happen next are an enormous source of comfort. It is the unknown that is so scary. Please read our guide on short sales above.

Call 781-782-6000 or 877-325-6746 to speak with one of our experienced Massachusetts short sale lawyers.

 

 

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Gosselin Law's short sale group can be reached at 781-782-6000 or toll free at 877-325-6746. Gosselin Law has convenient office locations in Boston and throughout Massachusetts.

What is a Short Sale:

• When a lender accepts a discount on a mortgage to avoid a foreclosure or bankruptcy.

Why a Lender Would Take a Discount:

• They do not like excess inventory or bad loans on their books;
• Loss mitigators have incentive to clear up defaulted loans - short sales help do that; and
• Lenders know they can lose more money if a home goes to auction.

Lender "Short Sale" Factors:

• Whether the seller deserves a break due to: financial hardship caused by unforeseen circumstances (layoffs, divorce, illness, etc.);
• Whether it would be cheaper to repossess the home, fix and sell;
• How many other properties the lender has in default; and
• If co-signers are on the loan and can help pay the mortgage balance.

The Short Sale Process:

• Acquire a professional (such as a real estate attorney) with short sale experience.
• Contact the lenders 'loss mitigation department' to discuss the possibility of a short sale and determine the lenders process for completing the sale. This sometimes involves acquiring a 'Short Sale' or 'workout' packet.
• Seller must issue a signed 'Release' or 'Authorization to Release Information' to authorize the release of personal information about the loan and the property for the buyer or escrow agency.
• Lender will review the settlement statement indicating: sale price, loan balance, expenses, commissions and fees associated with closing the sale.
• Seller must complete a 'hardship letter' explaining the reason for wanting a short sale. The letter should include all information regarding the financial circumstances of the seller along with bank statements, investment account information, pay stubs and other necessary financial information.
• The lender will connect with the broker to provide a price opinion based on the condition of the home, market value, maintenance costs, etc.
• The lender reviews the purchase agreement and real estate commissions and weighs them against the cost of repossessing the home to sell or auction.
• If the lender finds the situation works in their favor, the short sale will proceed with the terms negotiated in the purchase and sale agreement.

Short Sale Mistakes to Avoid:

• Don't low-ball your offer. Lenders are trying to minimize loss and have a good sense of property values so make your offer as tempting as you can while staying inside your profit guidelines.
• Have a knowledgeable short sales professional on your side. Lenders are busy and do not have time to explain the process so make sure you know what you are doing, or find someone (like a real estate attorney or a broker with short sale experience) who does.
• Don't assume each lenders short sale process is the same. Each lender has different documents, requirements and regulations so don't foul up by making assumptions.
• The fewer loans on the property - the smoother the short sale process. Avoid complicating an already complex process by having a good handle on what's owed on the home.

Why Short Sale Knowledge is Important for Brokers and Real Estate Agents

• You can recognize  the opportunity to sell a home and receive commission on a home that would otherwise be repossessed by the lender or auctioned.
• To develop a favorable reputation among potential buyers (who stand to purchase a discounted home with a short sale) and among sellers (who will no longer go into foreclosure or declare bankruptcy) let the experienced short sale lawyers at Gosselin Law guide you through the MA short sale procedure. Very often the legal fees are negotiated with your lender as part of the short sale procedure. Gosselin Law's short sale group can be reached at 781-782-6000 or toll free at 877-325-6746. Gosselin Law has convenient office locations in Boston and throughout Massachusetts.
Tags: Boston law firm, Century 21, Gosselin Law, Massachusetts Real Estate Attorney, Real Estate, Real Estate Broker, Short Sale, bankruptcy, boston, boston lawyer, boston short sale, boston short sale lawyer, foreclosure, foreclosure relief, gosselin and associates, lawyer, lender, loss mitigation, ma short sale, massachusetts lawyer, massachusetts short sale lawyer, mortgage, refinance, short sale lawyer, short sale procedure, short sales and massachusetts
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For better or worse we have a growing short sale specialty practice group, helping homeowners solve the problems associated with being 'upside down' on their home mortgages through short sales, deed in lieu transactions and arranging private sales.  Call us for a free consultation at 781-729-0313 to discuss.  There is no fee for the call and often our legal fees can be paid by your lender in the short sale.  Best wishes in the new year.

What is a Short Sale

• When a lender accepts a discount on a mortgage to avoid a foreclosure or bankruptcy

Why a Lender Would Take a Discount

• They do not like excess inventory or bad loans on their books
• Loss mitigators have incentive to clear up defaulted loans - short sales help do that
• Lenders know they can lose more money if a home goes to auction

Lender "Short Sale" Factors

• Whether the seller deserves a break due to: financial hardship caused by unforeseen circumstances (layoffs, divorce, illness, etc.)
• Whether it would be cheaper to repossess the home, fix and sell
• How many other properties the lender has in default
• If co-signers are on the loan and can help pay the mortgage balance

The Short Sale Process

• Acquire a professional (such as a real estate attorney) with short sale experience
• Contact the lenders 'loss mitigation department' to discuss the possibility of a short sale and determine the lenders process for completing the sale. This sometimes involves acquiring a 'Short Sale' or 'workout' packet
• Seller must issue a signed 'Release' or 'Authorization to Release Information' to authorize the release of personal information about the loan and the property for the buyer or escrow agency
• Lender will review the settlement statement indicating: sale price, loan balance, expenses, commissions and fees associated with closing the sale
• Seller must complete a 'hardship letter' explaining the reason for wanting a short sale. The letter should include all information regarding the financial circumstances of the seller along with bank statements, investment account information, pay stubs and other necessary financial information
• The lender will connect with the broker to provide a price opinion based on the condition of the home, market value, maintenance costs, etc.
• The lender reviews the purchase agreement and real estate commissions and weighs them against the cost of repossessing the home to sell or auction
• If the lender finds the situation works in their favor, the short sale will proceed with the terms negotiated in the purchase and sale agreement.

Short Sale Mistakes to Avoid

• Don't low-ball your offer. Lenders are trying to minimize loss and have a good sense of property values so make your offer as tempting as you can while staying inside your profit guidelines
• Have a knowledgeable short sales professional on your side. Lenders are busy and do not have time to explain the process so make sure you know what you are doing, or find someone (like a real estate attorney or a broker with short sale experience) who does
• Don't assume each lenders short sale process is the same. Each lender has different documents, requirements and regulations so don't foul up by making assumptions
• The fewer loans on the property - the smoother the short sale process. Avoid complicating an already complex process by  having a good handle on what's owed on the home.

Why Short Sale Knowledge is Important for Brokers and Real Estate Agents

• You can recognize  the opportunity to sell a home and receive commission on a home that would otherwise be repossessed by the lender or auctioned
• To develop a favorable reputation among potential buyers (who stand to purchase a discounted home with a short sale) and among sellers (who will no longer go into foreclosure or declare bankruptcy)

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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."

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Gosselin Law assists homeowners in Massachusetts and New Hampshire negotiate effective short sale, deed in lieu and other foreclosure alternatives. Call us toll free at 877-325-6746 for a no fee consultation. No fee is due unless homeowners complete a short sale. Here are some tips to help homeowners facing foreclosures. Note that we only provide our services in Massachusetts and New Hampshire.

What is a Short Sale

• When a lender accepts a discount on a mortgage to avoid a foreclosure or bankruptcy

Why a Lender Would Take a Discount

• They do not like excess inventory or bad loans on their books
• Loss mitigators have incentive to clear up defaulted loans - short sales help do that
• Lenders know they can lose more money if a home goes to auction

Lender "Short Sale" Factors

• Whether the seller deserves a break due to: financial hardship caused by unforeseen circumstances (layoffs, divorce, illness, etc.)
• Whether it would be cheaper to repossess the home, fix and sell
• How many other properties the lender has in default
• If co-signers are on the loan and can help pay the mortgage balance

The Short Sale Process

• Acquire a professional (such as a real estate attorney) with short sale experience
• Contact the lenders 'loss mitigation department' to discuss the possibility of a short sale and determine the lenders process for completing the sale. This sometimes involves acquiring a 'Short Sale' or 'workout' packet
• Seller must issue a signed 'Release' or 'Authorization to Release Information' to authorize the release of personal information about the loan and the property for the buyer or escrow agency
• Lender will review the settlement statement indicating: sale price, loan balance, expenses, commissions and fees associated with closing the sale
• Seller must complete a 'hardship letter' explaining the reason for wanting a short sale. The letter should include all information regarding the financial circumstances of the seller along with bank statements, investment account information, pay stubs and other necessary financial information
• The lender will connect with the broker to provide a price opinion based on the condition of the home, market value, maintenance costs, etc.
• The lender reviews the purchase agreement and real estate commissions and weighs them against the cost of repossessing the home to sell or auction
• If the lender finds the situation works in their favor, the short sale will proceed with the terms negotiated in the purchase and sale agreement.

Short Sale Mistakes to Avoid

• Don't low-ball your offer. Lenders are trying to minimize loss and have a good sense of property values so make your offer as tempting as you can while staying inside your profit guidelines
• Have a knowledgeable short sales professional on your side. Lenders are busy and do not have time to explain the process so make sure you know what you are doing, or find someone (like a real estate attorney or a broker with short sale experience) who does
• Don't assume each lenders short sale process is the same. Each lender has different documents, requirements and regulations so don't foul up by making assumptions
• The fewer loans on the property - the smoother the short sale process. Avoid complicating an already complex process by  having a good handle on what's owed on the home.

Why Short Sale Knowledge is Important for Brokers and Real Estate Agents

• You can recognize  the opportunity to sell a home and receive commission on a home that would otherwise be repossessed by the lender or auctioned
• To develop a favorable reputation among potential buyers (who stand to purchase a discounted home with a short sale) and among sellers (who will no longer go into foreclosure or declare bankruptcy)

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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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I make my Easter turkey a couple of different ways, sometimes, I'll even make two or three smaller birds in different styles. My favorite method for preparing turkey is really the most simple. First, choose a fresh 10-12lb whole turkey, clean it thoroughly. Preheat a three burner gas grill to maximum temperature with a handful of hickory chips wrapped in aluminum foil, (I use a Vermont Castings that I got at Home Depot for this part ).

Mix chopped carrots, celery, onion, fresh sage, fresh ground pepper, a crushed and chopped lemon, a couple cloves of garlic and five tablespoons of sea salt (seriously) together and stuff it into the turkey cavity. Generously slather sea salt, ground pepper, fresh sage and lemon juice all over the skin. Here's the trick. Now, turn the middle burner to the off position and the front and back burners to the lowest possible setting. Place the turkey breast up, close the grill and wait. Whatever you do, don't check on the turkey. Just come back in 2.5 hours. Do not open the lid. Do not open the lid. Do not open the lid. I know you will, so close it quickly - the secret is uninterrupted convection. Don't eat the vegetables inside, just discard them prior to serving.

 

There are two holidays in my estate planning world - Easter and Leap Year Day. Huh? Easter is a holiday based around families coming together to share a meal and in the "Leave it to Beaver" world to think about the good things in life that come from being a family and the re-birth that the season inspires. Since we had Leap Year Day, there is no Easter on my perpetual calendar this year.

Of course, Easter today is as much about Easter baskets, and after Easter sales at the Burlington Mall. Leap Year Day is a big holiday on my perpetual calendar.

LYD (what us insiders call it) is a day every four years that you should take your estate plan and read it. And as you get older, I'd celebrate the last day of February more often. For older clients, I suggest reviewing your estate plan each year at Easter time. So, every four years until you stop buying green bananas!

Death. Money. Who gets the china? I think these are wonderful topics for your Easter Feast. What better time than when you have the whole family together to discuss your estate plan? If you want to review your intended resurrection, I'm all for it - tell your family that you will haunt them. I am a great proponent of talking to your family about your financial affairs and your intent - albeit homogenized for the audience. You may not want your in-laws to be in the room, no problem, give them a Monopoly box and put them in the den. Easter is a good day for board games. Did you ever think that Milton Bradley has a Monopoly on Monopoly?

Be direct with your children. In my experience as an elder law lawyer in Massachusetts, I have learned that frankness wins the day. You can reduce your child's anxiety by giving them straight answers and your clear intent. If you intend to create trusts for your children - tell them so. And don't let your spendthrift child talk you out of protecting him from himself. If need be, call your estate planning lawyer (my cell phone will be on on Easter for just such emergencies) to take the heat. As for health care issues there is nothing better than expressing your wishes to your family. After all, they will be the ones to make decisions about your care when you are no longer able.

It's a time to give thanks for the good things in our lives and to discuss what will happen after our deaths. It's what Jesus would do.

Happy Easter and God Bless.