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

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.

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

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

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

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

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

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

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

I turned on the evening news

Saw an old man being interviewed

Turnin' 102 today.

Asked him what's the secret to life

He looked up from his old pipe

Laughed and said all I can say is:

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

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

Trust me friend, 100 years goes faster than you think

So don't blink.

Well, I was glued to my T.V.

When it looked like he looked at me

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

'Cause when your hour glass runs out of sand

You can't flip it over and start again

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

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

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

Trust me friend, 100 years goes faster than you think

So don't blink.

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

I've been tryin' to take it in.

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

So...

Don't blink,

Just like that you're six years old

And you take a nap

And you wake up and you're 25

Then your high school sweetheart becomes your wife.

Don't blink,

You just might miss your babies growing like mine did

Turnin' into moms and dads

Next thing you know your better half of 50 years

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

Trust me friend, 100 years goes faster than you think

So don't blink.

No, don't blink.

Don't blink.

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

Life goes faster than you think. Don't blink

Don't blink

Life goes faster than you think...

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The word came quickly that he had six weeks to live.  He just woke up with a splitting headache and blurry vision on a Tuesday, a Tuesday like any other Tuesday.  Went to the doctor, had a test or two, and WHOOMP! there was an inoperable tumor the size of a golf ball in his noggin.

The doctors said he would have about two or three weeks during which he could walk around and more or less function normally and then he would be put out of commission by the effects of the morphine and the lack of oxygen needed for his vital brain functions.  Most anyone would start praying or go sky diving, but this gentleman had a very different plan.  Since he could not travel to see the world due to the short amount of time left, the estate planning paperwork to be done and the final goodbyes to family and friends to be said, he instead chose to taste the world.  Yes, he would literally eat until he died.

With a globe as his guide and a close friend as chauffeur, he began to sample cuisines from over thirty countries.  Most of the food came from restaurants located in out-of-the-way places that he had always wanted to try, but much of the food also came from complete strangers who had heard of his plight. 

He did not suffer too much nausea as chemotherapy really was not an option at this point, but he was quite drowsy and lacked appetite much of the time.  This did not stop him from sampling the fiery foods of Cambodia and Laos or the butter-rich baked goods of Finland.  Even in the very last days when his consciousness was only fleeting, his family brought him his favorite foods just so the aroma of boeuf bourguignon or garlic mashed potatoes could comfort him.  He died as he wanted, sampling the world through its foods.

How will you die?  I don't mean 'hit by a bus', 'cancer' or a 'heart attack just like my father' - that's all so pedestrian.  The reaper will take each of us one way or another.  I mean what's your taste in dying?  Will you surround yourself with symphonies and hear the angels as you drift off?  Face the bull and jump from the plane like Tug McGraw?  Or, just sit quietly holding the hand of the one you love?

In my work as an elder law lawyer I am often one of the last people, outside of medical workers and family, that clients see before they die.  For the first years of my practice I soberly played my role as "the lawyer" with my dark suit, briefcase and methodical manner; but now, now I try to engage my clients with the notion that although life will continue on without them, they can be at peace knowing that they have done what they can to protect their loved ones.  I've warmed up to embracing, or at least touching, my dying clients as I  leave their bedsides with their affairs in order.  I whisper my last words into their ears, inaudible to their families, "Everything is in order, don't worry".  For better or worse, many of my very sick clients leave this world shortly thereafter. 

Take a moment and think about hearing that you only have weeks to live.  Have that bag packed in your mind.  Have your affairs in order.  It will let you taste the last bits of life instead of wasting precious time deciding what to pack.

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The 100 year old man was a child during the world's first Great War. He came of age in the roaring twenties. He raised children in the Great Depression, only to watch his sons go off to World War II. He was a company man in the 1950's and his retirement was a gold watch - about the same time as the first man walked on the moon.

He saw presidents die in office, Americans die in far off lands and he went to the funerals of all his close friends and family. The 100 year old man loved the large screen TV of today with all the channels (including that racy HBO with its wonderful foul language and "brief nudity"). He equally loved the choices of food, reading materials and flourish in the voices of the Caribbean women who cared for him.

After living more than 36,500 days, the 100 year old man is not sure what to do tomorrow. The problem with tomorrow is it is a truly unknown time and place, now that he's reached the century mark. Today. He has this time, this hour, and this minute. But tomorrow?

Some days he hoped that there would be no tomorrow - that this night he would pass back into the arms of his beloved wife. Other days he hoped to see the Red Sox battle the Bronx Bombers or to find out who won American Idol. He never worried much about tomorrow over the past 100 years, but now, tomorrow was on his mind.

So he called me to his small encampment at the end of the hall at a local nursing home and asked me to make out his will. His first will ever. It was his first plan for tomorrow's "what if?" Two weeks to the day his will was witnessed and signed, the 100 year old man indeed passed in his sleep.

His wishes were recorded in his will and trust as a map for his family's tomorrows. All is well. A life well lived.

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Estate planning is for old people in hospice, right? Don't estate planning lawyers hang around nursing homes looking for dying people who need wills? I'm young, healthy and make big money - what do I need with planning for incapacity, I'll do that when I'm old. What does it take for an otherwise intelligent, caring and responsible person to call an estate planning lawyer to get a will drafted and their affairs in order?

Well, I just came back from my summer vacation (in Alaska and Seattle) using the disgrace that is our national air travel system. Despite my conscious person knowing that the cab ride to the airport was many times more dangerous than the metal tube hurtling through the air at 600 miles an hour, I knew somewhere within me that at any time I could become dust. As a rule I travel with my immediate family all together, yet I know others that always separate their children and spouses on the theory that 'at least one of us will survive.' Statistically I don't know if they're better off or not.

In the months after 9/11 I saw a huge influx of new estate planning clients, many of whom never had done any estate planning of any kind. These were people in their 50's and 60's that had never had a will let alone an asset protection or liability protection plan in place for their families or their businesses. They had just been too busy to get their affairs in order apparently. It took the realization that they could have been on those planes or they could have been at Windows on the World having a coffee and Danish. From discussions with colleagues in New York City many new high net worth estate planning clients came in who admitted that previously they thought themselves invincible, immortal or just plain luckier than those poor slobs that become incapacitated at a young age or die leaving their families in dire straits. It couldn't happen to them.

Every day we see disasters, car accidents, epidemics, crimes that destroy lives and cause untold distress to whole families. I am proud to provide at least some measure of peace of mind to those that seek protection, or at least preparation, for the worst that this world has to offer. You would think that with the unending flow of misery leading our headlines that estate planning lawyers would be beating off the business with a stick - but rather, in my experience, people cower and convince themselves that it is always someone else therefore they need not take responsibility for their own situations.

I have filing cabinets full of this flawed reasoning, and the files are labeled with such terms as probate, guardianship, bankruptcy, litigation. Do yourself a favor and get some estate planning done. It need not be expensive. It need not take a lot of your precious time. And it doesn't make you look weak - on the contrary it shows that you are strong enough to acknowledge your own mortality, which as you've seen before in this blog is really one of the few things that distinguishes humans from all other life forms on Earth. And yes, the cobbler's kids have shoes.

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I met Mitt Romney about eight years ago. Mitt and I maintained an odd sort of relationship over a couple of years. He and I would sit twenty feet apart each week for five hours at time. We never shared a word, but our eyes would meet almost every Friday evening with a "hey neighbor" nod of the head. I represented a company in Utah that is in the legal and real estate software business. From 1999 to 2001 I attended regular Friday morning meetings at the company's office in Provo, Utah. Each Friday night I would fly Delta back to Boston. Invariably I would see the same well dressed man traveling alone sitting in the waiting area. Often he would be reading business papers, but just as often he would be passively enjoying the throng of people filing through the airport. He was Mitt Romney, head of the Salt Lake City Olympic Committee, but I didn't put his face with his name for several months.

I noticed something very different about this well dressed and outwardly successful man right from the beginning. As we boarded the plane, each traveling alone, I would take my seat in the first class cabin (because I traveled so much Delta upgraded me on every flight) and Mitt Romney would take his aisle seat in the coach cabin. One time I glanced at the flight manifest that they tack up in the first class galley and saw that Mitt Romney's name was in the list with mine as a "medallion flyer", meaning that he had the same privilege to sit in the front of the bus. And he's tall, and he traveled frequently, but he sat with the people. This was a five hour plus flight at night. The plane was normally only half full and was one of those dull dark rambling flights bringing people from one place to another place without any fanfare. Mitt Romney was not being watched by the Boston Globe or New York Times, he was not even a politician - just a tired business traveler trying to be home for the weekend.

Back to the Boston Globe story and how this relates to estate planning, elder law and lawyers in Massachusetts generally. I have no affiliation with the Church of Jesus Christ of Latter Day Saints (Mormons) - those that know me know that I would last about ten minutes with their prohibitions on coffee, foul language and alcohol - not to mention where I stand on virtually every social issue of importance in modern life. But I have developed a great respect for their single most important belief - that our families our bound to us forever and therefore of utmost importance. Mitt Romney and I see few issues the same way on the scorecard of politics that the media requires of candidates, but I still see Mitt Romney as a worthy man for leadership in America. That's not to say I'd vote for him, I probably won't, but if Mitt Romney got elected at least I would trust that he would act honorably.

The Boston Globe ran a 37 picture album of the Romney family today. From Mitt Romney's childhood through to his wife's birthday party this past spring his devotion to family is without peer. Mitt Romney reads to his grandchildren. Mitt Romney brings his kids to school on their first day. Mitt Romney cuddles with his newborn son. Mitt Romney holds his wife's hand. Mitt Romney came home on Friday nights to be with his family, steerage class. I recently heard a story about Michael Eisner, the former head at Disney, who apparently had a sign in his office that read "If you're not here Saturday, don't bother coming in Sunday." You won't see this sign in Mitt Romney's oval office. Sure, he'll be available for emergencies of state, but more likely Mitt Romney will be at church and playing Wiffle Ball with his sons on the lawn of the White House. Learn from Mitt Romney. Not the politics (we can have that discussion another time). Learn how the man has enjoyed unimaginable financial and personal success but still goes to his lake house in New Hampshire most weekends to pull water skiers and attend his grand daughters' tea parties. Mitt Romney's devotion to family is worth emulating. In my elder law practice more than anywhere else I see the opposite example.

I see parents that never made the time to read to their children, counsel them when they had problems or share their hobbies. What does this breed? Ask Harry Chapin (Cat's in the Cradle). These children impoverish the spirit of their parents by not helping when their parents need help the most. These children impoverish their children by living as their parents lived. It is not too late to mend your ways, especially if you still have young children in the house. Bring a kid golfing with you (Mitt Romney was his father's caddy). Skip your weekly poker game and bring your kids to the movies. Tell your boss that you can't make it to that late meeting because your son has a little league game. Eat your meals together as a family, at a table, without a television or iPod and talk about the events of the day. Go camping, in a tent, with nothing run by electricity. Mitt Romney did these things in spades with his busy father and as a busy father. If you treat your children as an extension of yourself and you bond your family together on the premise that you will be spiritually together for an eternity or at least while your hearts are beating (whatever your beliefs may be), you will be rich - richer than you can ever imagine. Ask Mitt Romney.

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The death of emergency Medicaid planning is official. Let us mourn the techniques of the estate planning and elder law bar that allowed elders to qualify for Medicaid benefits despite having significant assets. Due to the Deficit Reduction Act of 2005 (passed in 2006) most planning opportunities now involve five year plans and more complex trust instruments. While we are still working on these more complex trusts, including irrevocable trusts, intentionally defective grantor trusts and the like; the demand for our services at the time of Medicaid application has diminished markedly. Despite the law change in Massachusetts (and Federal law), there are still steps we can take for asset protection for elders at the time of application including promissory notes, certain annuities and special needs trusts for certain family members - Medicaid planning is not entirely hopeless, but the best opportunities for elder law attorneys have been signed away by the governments lawyers and Congress. So, what is a lawyer to do?

We are not the type to passively sit by as other lawyers eat our lunch. We have been working diligently for the past several months re-tooling the asset protection aspects of our law firm to be more directly focused on the asset protection needs of high and ultra high net worth individuals who are concerned with protecting assets from all types of judgment creditors. This planning involves the use of trusts, corporate entities and legal jurisdictions where the laws favor the protection of assets (in exchange for bringing new cash to places perhaps not normally thought of as centers of the legal or financial world - like Nevada and Alaska).

In the coming weeks I will be participating in significant training and axe sharpening programs to help make sure that our law firm is on the cutting edge of asset protection, not only in the US but also in cooperation with certain off-shore legal jurisdictions where certain planning can be beneficial for particular clients. I leave shortly for a conference in Las Vegas where the Nevada trust industry will woo my estate planning asset protection attention. In a nutshell, asset protection involves transferring legal ownership of assets to another person, in most cases this person is a trustee and under the various state laws (such as Nevada asset protection law) at least of these trustees must be a Nevada trust company. By so transferring the legal ownership, as well as structuring the language and documentation of the trust so that it conforms with state law, you can achieve protection from certain types of creditors over time (in Nevada you can protect assets in as little as two years), including judgment creditors and even spouses in a divorce.

Our law firm works cooperatively with Nevada legal counsel to make sure that all asset protection documents conform to Nevada legal requirements as these are not Massachusetts documents. We will be revisiting this topic in much greater detail in the coming months as our law firm will be working diligently to bring our clients up to speed on this exciting estate planning opportunity. The main advantage of Nevada asset protection and other state and countries is the use of charging orders (how creditors are paid in the event of a claim) and certain tax benefits. Not only is this legal, but it is a prudent use of client's resources as it is one of the few ways that we can preserve estate tax planning opportunities while locking in the protection of assets.

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There's been a lot of buzz lately about the estate tax limits being raised by this Congress to lofty new levels. Once they raise estate tax exemption limits (estate taxes are taxes paid as part of the probate and non-probate administration processes to both Federal and Massachusetts tax authorities, currently estate taxes kick in at $2,000,000 for Federal purposes, Massachusetts law lowers this limit to collect Massachusetts a few more dollars), estate planning will become less of an exercise in tax avoidance and more targeted to special needs planning, trusts for various special purposes (like dynasty trusts, spendthrift trusts, asset protection, elder law and Medicaid planning, charitable trusts, really whatever estate planning lawyers can think up), and just simple will planning.

So what's going to be fun about that? Our legal clients will no longer be the near affluent seeking to minimize their estate taxes, but either we will have more of the super rich seeking lawyers who can minimize their estate taxes and help them avoid probate or we will have families with unique estate planning opportunities. An article that caught my eye talks about a unique way to dispose of your corpse by helping your alma mater raise a few new dollars. Colleges are now pushing for niches for cremains or full blown cemeteries on their properties. I wonder if the school's cheer leading squad, marching band and mascot can be hired to come to your funeral? Is your final resting place determined by your grade point average? If so, some students may find themselves near the campus laundry instead of on a nice bluff overlooking the quad.

Note to Middlebury College (my alma mater): you are already included in my estate planning; I send you a check or two every year and I volunteer a 100 or so hours a year interviewing new prospects between trying to be a lawyer in Massachusetts - so, you can't have my body too. Once my probate administration is over down at the Middlesex Probate Court, I want my family to rest comfortably knowing that all my debts have been paid and they can file my final probate account in peace. Thanks, but no thanks, I'm not paying any more tuition bills. **************LOS ANGELES -- The rooms in this college dorm have no electricity, no running water, and ceilings that are just 11 inches high. But the residents don't mind. They're dead. Draped in sky-blue marble, the honeycombed structure -- which is tucked behind a set of spooky glowing stones at Chapman University in Orange, Calif. -- is designed to house the cremated ashes of alumni, faculty, and pets.

The mini-cemetery is part of a small but growing trend on college campuses. This summer, Notre Dame will unveil a pair of limestone and brick mausoleums laced with full-body crypts selling for as much as $11,000. And the Citadel military college in South Carolina is adding 400 urn niches to a carillon tower that holds one of the Western Hemisphere's biggest collections of Dutch bells. The University of Southern California is also studying the idea of campus tombs for a proposed multifaith chapel.

Think of it as continuing ed for the dead -- or the ultimate college reunion. In today's mobile society, some people feel more connected to their alma mater than to their hometown, said cemetery consultant Mel Malkoff, who oversees Chapman's columbarium and is working on similar projects with other schools. "People look back on their college years and say, `Those were the best days of my life,' " Malkoff said. "Why not spend eternity there?" Hoping to cash in on such sentiments, some universities don't stop with enrollment space. They also offer custom urns -- or coffins blessed by monks. As odd as such practices might sound, they're rooted in the past. College graveyards were once fairly common, said historian David Sloane of USC, author of "The Last Great Necessity: Cemeteries in American History." In the early 1800s, before embalming became widespread, it was often impractical to ship home the body of a deceased student or professor. Iowa State University's 131-year-old dead zone holds about 800 corpses, mostly faculty but also two students, a night watchman, and his dog. Notre Dame's sprawling burial ground debuted in 1843, one year after the school was founded, along with a mortuary that helped subsidize tuition costs.

By the late 20th century, many longtime college cemeteries were languishing. The University of Virginia's 1828 graveyard ran out of room in the early 1960s, said Dr. Dearing Johns, a cardiology professor who heads the school's cemetery committee. School officials decided against expanding it -- until an alum who wanted to be buried on campus suggested a columbarium wall and paid for the construction with three friends. It's a great way to generate money," said columbarium chief Andrea Patenaude of the University of Richmond, which recently transformed a sliver of campus into a million-dollar serpentine wall carved with 2,900 niches priced at $3,000 each. A spider logo, depicting the school's mascot, climbs the bamboo gate leading to the wall. Duke University is charging $25,000 a pop to bury ashes in its new 2-acre memorial garden. Part of the motivation for Duke's program was that people had begun scattering ashes there on the sly. The profits will help finance the school's vast public gardens.

Chapman's dorm for the dead, with prices ranging from $2,500 to $5,000 per two-urn chamber, was built to help fund the school's new chapel. A meditative garden leads to the memorial, which sits behind a wall of white onyx that is illuminated from within to symbolize "the elusive separation between the living and the dead, a separation of a single breath," according to designer Susan Narduli. Colleges aren't the only institutions offering alternative burial space. A German soccer team recently announced plans to open a public cemetery next to its stadium, according to news reports. A similar idea was floated in San Diego a decade ago, when a businessman urged the Padres baseball team to install 70,000 cremation niches in the outfield wall of its new park. Despite a potential windfall of $175 million, Padres management balked at the proposal.**************** If Red Sox nation could put little cremains niches in the Green Monster with glass walls so you have an unobstructed view of Manny Ramirez running down fly balls... I might want to get half a dozen of those now just to stretch out and watch the game without getting beer spilled on me.

Since this is supposed to be a legal blog, there are a few things that you should know about the disposition of a corpse in Massachusetts. Under Massachusetts law your corpse is not the property of your executor or your probate estate. Your corpse belongs to your next of kin. Effectively there is an order of degrees or relations that Massachusetts law requires you to follow. Your spouse has first claim to your corpse (even that 24 hour romance in Vegas counts). We have had many a case of the new spouse (often known as the StepMonster, not to be confused with the Green Monster) burying or cremating their spouse completely contrary to the wishes of the family (and even the deceased spouse). After the spouse, the children have collective priority, an issue when they do not agree as to the disposition of the corpse. The most famous case happened in Red Sox Nation, when Ted Williams' family needed to go to probate court to decide whether the splendid splinter would be frozen or cremated. My advice as a lawyer is to pre-pay for your funeral. I have only had a couple of cases where the family would rather pay from their inheritance to arrange burial instead of taking the freebie.

NOTE - The response to the blog has been overwhelming, from best we can tell there are hundreds of regular readers already. I apologize again for using some words a little too much (you know the words: probate; Massachusetts law; Boston lawyer; real estate; estate planning; elder law; Medicaid), we expect that this will no longer be so necessary as the blog is added to its own server and web site soon. I also promise to bring you entries that relate to your interests and concerns. To do this, I need your input and ideas. Feel free to email me at Gosselin@GosselinLaw.com or add comments.

PS - The new building is near getting its permits, we expect the construction trailer to be on site next week and the fun to get started. To those that do not know, Gosselin & Associates, P.C. (from now forward to be known publicly as "Gosselin Law") is creating the largest and most modern law office ever in Winchester, Massachusetts (hey, can't fault me for bragging a little!). Seriously, we will have about 8,000sf of space, a conference facility seating about 60, several conference rooms, a full service kitchen, a gym with a personal trainer on staff, a children's room, all on site storage and a great parking lot - even a dog yard for my Australian Shepherd. My big headache at the moment is trying to figure out the difference between "Whisper Sage" and "Dusty Hemlock", those who know what this means, know what I mean. More construction updates as I get them. We hope to move in October or November.

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Practicing in the area of probate law in Massachusetts exposes me to so many good people. Well, most all of my clients and their families are good. It's their relatives that cause all the problems. Over several years of practice I have developed a set of baseline rules for dealing with people in probate cases; I like to call it the Gosselin Theory of Relativity. It boils down to this "friends for pleasure, strangers for business and relatives for no good reason at all." Let me share with you some true to life stories (with the names changed to protect the innocent).

Many years back I had written the estate plan (will and trust) of a then elderly woman of substantial means in the area North of Boston. "Mrs. Jones" had two children. "Elsa" was a loving daughter. She visited Mrs. Jones often and was her confidante and companion as Mrs. Jones' health declined. Elsa was more or less the model daughter. "Aurelius" was a greedy, lying, conniving germ of a man that was born to Mrs. Jones but took a wrong turn on the way out of the nursery. Mrs. Jones only saw him when he was on the lam or looking for a "loan." She never turned him away, but had a plan for him at her death. You see, her estate planning made provisions for Elsa, Elsa's children, even Aurelius' children - but it left nothing to Aurelius. Mrs. Jones, as is common, asked me to keep her papers for safekeeping, only telling Elsa and Aurelius that should something happen to her that they should contact me. Aurelius lived in a Mid-Atlantic state and drove through the night to reach my office at 8:30am.

He was waiting with his car idling for me to come in to work. "Are you Mrs. Jones' lawyer? She died yesterday. She was my mother. I want to know what I'm getting in the will." I knew this day was coming. My instructions were clear from Mrs. Jones that I was to give Aurelius any and all notices required under the probate law of Massachusetts, but nothing more. "You must be Aurelius," I said like any good lawyer who only asks questions fully knowing the answer before they are spoken. "I am so sorry to hear about your mother, she was a kind and thoughtful woman. Your mother's property was held entirely in a trust, her will is of no consequence, the trust is a private document and if there is any reason to contact you in the due course of its administration I will contact you, won't you confirm your address?" I succinctly responded.

After a variety of profanity, Aurelius stomped away. Wouldn't you know that when I called Elsa to inform her that I had met Aurelius her response to me was "Mr. Gosselin, why are you sorry about mother? She is right here with me." I'll be coming back to the theme of greed over the coming weeks, it is an unfortunate necessity of being a probate lawyer. [Housekeeping: I just want to let all of you know that this blogging thing is more time consuming than I ever imagined. So, please excuse short posts or gaps of time, it's my goal to produce a new blog every 3 days or less. Also, my webmaster tells me to make sure I use "magic" words in my blog, like probate, real estate, lawyer, elder law, Massachusetts, Boston, etc.", but I promise to use these terms in their proper context and from time to time to create blogs with no words like probate, elder law, Medicaid, estate planning, Massachusetts, real estate. :)]

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I believe the dead deserve the utmost respect and care - a sentiment Keith Richards of the Rolling Stones apparently does not share.

Mr. Rirchards has a longstanding reputation of doing anything once or more. Keith told reporters this week he mixed his father's ashes with cocaine and enjoyed snorting him a couple of years back. He now says he made it all up. That he is alive at all in order to joke in this manner is no small miracle. Keith admits he is lucky in that way, given his life style.

Nearly every day calls come to our office about how to handle a recently deceased loved one, or one who is about to expire. It is harder for children today to decide how to most suitably dispach their elders. "Uncle Tom was catholic, but gave it up when he went into the Navy. Then he was born again, lost again and then he married Aunt Myrna who was into crystals and smoke spirits." We are athiests and just want to save money - isn't there an 800 number we can call to come get the body?

In Massachusetts, the law is clear on disposition of the bodies. Next of kin has control of the body after death. That's right, you will not call the shots about your own body. Your spouse or your children, or next of kin will - unless you have had the presence of mind to pre-pay your funeral or burial arrangements before the event.

I find it amazing how many athiests enjoy an Episcopal, Methodist or Catholic service, once they learn it's already paid for.

Now my dear Nana, a good and frugal woman, had to get a headstone in 1973 for her departed husband. The stone worker charged by the letter, so she had her own name chiseled onto the grave marker (a possible hedge against inflation). The problem is she was born in the 1900's and wouldn't die until the next century, but she was not going to pay extra money for extra digits.

We promised to honor her wishes and let it be. But when the time came, we paid the extra $40 and had the correct date of death chiseled in that stone. Literally, over her dead body.

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