Why Single People in Worcester County Should Consider Estate Planning

When we typically think of estate planning, we see grandma and grandpa putting together a Will and possibly setting up some trusts for the following generations. It’s all about providing for our offspring, right?

Not necessarily. Even if you are single and/or have no children, a Worcester Wills and Estates lawyer like Attorney Kristina Vickstrom should still be in your plans. Why? Because estate planning is really about YOU.

While it is absolutely advisable for married people or those with children to work with an estate planning lawyer, it’s also just as important for single adults. After all, when a married person suffers a major illness, it’s usually pretty clear who will eventually take on their medical and financial responsibility. The water gets murkier for unmarried individuals.

If you were to suddenly become incapacitated, who would make your medical decisions for you? Possibly your parents would be called in to determine how your medical care should proceed. It might be your sibling. But what if you don’t get along with your brother? Even if your parent or sibling would be your first choice, that doesn’t mean that the courts would agree without having your wishes legally documented.

The person to make medical and financial decision on your behalf is whomever the courts decide! Again, it could be a parent, a sibling, some other relative, or even a court-appointed individual (a stranger!). While she was not single when she was hit with dementia, the children of the late signer, Etta James, fought repeatedly with their step-father over the management of her assets and health care. James should have documented her wishes and avoided a lot of the conflict, allowing her family to more fully enjoy her last moments.

Finally, who would have legal rights to your belongings, to your home, to your pets? You may think you know the answers, but without clearly outlining your wishes with a Worcester area Wills and Trusts attorney, you have very little control over the matter. Families can be torn apart by court battles involving an estate with no Will. Popular Swedish novelist Stieg Larsson, who died unexpectedly in 2004, had been living with his girlfriend of 30 years at his passing and had taken on no estate planning. A legal battlefield erupted over his assets, namely the rights to his successful publications. With the exception of an unfinished manuscript on a shared laptop, his girlfriend walked away with nothing and Larsson’s father and brother inherited everything. This also could have been avoided, or lessened, if Larsson had set up even the most basic of estate plans.

A single adult without children does not need to worry about creating guardianships and trusts to provide for his or her children, but it’s certainly a good idea to look out for yourself. Some of the basic legal documents any single person should have include:

• A Will to determine what will become of your assets in the event of your death.
• A Health Care Proxy to name the person you want making medical decisions on your behalf.
• A Power of Attorney for financial matters to name the person you feel should be responsible for your money if you are incapacitated.
• And possibly a revocable living trust to centralize management of assets if you become incapacitated and keep your assets out of probate if you should pass away.

These documents are crucial in ensuring that your wishes are met and that you have control over your future. One doesn’t need to a famous R&B singer or best-selling, author to need an estate plan. Everyone, including single people, in Worcester County, should consider estate planning.  Contact Vickstrom Law today to set up a consultation or to find out more information.

Photo courtesy of Bree Bailey

How Do I Bring Up the Topic of Estate Planning to My Parents?

In Worcester, just as everywhere else in the nation, there is a tendency for people to put off estate planning.  Elder law attorneys, like Kristina Vickstrom, recognize that there are multiple factors that lead people to procrastinate when it comes to the estate planning process.

One of the biggest factors, of course, is that most people don’t want to consider their own mortality, and estate planning forces you to do just that.  When it comes to adult children, we are just as guilty of not wanting to think about the inevitability of losing our parents, and therefore, we choose not to push them.

There are other complex reasons that come into play as well.  An adult child who wants to encourage his or her parents to set up wills and trusts may worry that the parent or other family members will mistake concern for greed.  If the parent has remarried, then even more complex family dynamics can come into play, with the adult child remaining quiet on the subject rather than creating waves.

Elder law attorneys understand these considerations and so many more, but we also know what happens when advanced planning isn’t given enough attention.  When a parent passes away or becomes incapacitated without an estate plan, the fallout can be devastating.  It may fall to the courts to determine who should be given power over medical and/or financial decisions for the parent, and the court’s opinion often does not reflect the wishes of those involved.

Really, having a plan in advance of a tragic event is the best way to ensure it will be handled according to your parents’ desires; and framing the request in this way can be helpful.  At a time in life when they are finding themselves with less and less control, it can be reassuring to know that some of the most important decisions regarding health, money, and property are theirs to make; and that when they can no longer make those decisions, substitute decision makers of their choosing are ready to step in.

In order for this to happen, though, parents need to meet with their elder law attorney while they are still able to make sound decisions and legally sign documents.  Again, most people don’t want to think about losing their mental acuity, but it can be very common.

Creating wills and trusts and setting up powers of attorney and a health care proxy can give your parent the sense of control that they may feel slipping away.  During your discussions with your parent, it can also be helpful to point out that estate planning:

• Allows them to determine who they want to have in charge of their money
• Provides the opportunity to designate who will receive which assets (or none at all)
• Keeps the courts out of the process, or limits their involvement, saving time, money, and hassle for those left behind
• Ensures that THEIR wishes are the ones that matter
• Minimizes the taxes that will be paid out of the estae

Life is busy, and it’s easy to say that estate planning is something that we’ll get to “later.”  However, “later” doesn’t always come when you think it will.  Instead of leaving the decisions (and potential hassles) in someone else’s hands, empower your parents to have a say in their future and the future of their family. Contact Vickstrom Law today for more information about encouraging your parents to handle their estate plan and to set up a consultation.

I Take Care of My Mother. Can I Legally Get Paid for That?

As the number of family members providing care for aging parents increases, the solutions to find help with loss of income because of time off from employment for caregiving has become a major concern for many. The demands on both the time and energy needed to provide the needed care can make it impossible to maintain both a full time job with full time caregiving.

Angela is a registered nurse. Her mother, Renee, has been experiencing a gradual decline in her health due to her Alzheimer’s and stroke and recently moved in with Angela. Angela is taking more and more time off from work to give Renee the care she needs. Sometimes she misses out on important overtime that her household finances depend on. Angela started paying herself out of her mother’s account for the care that she gives Renee. She pays herself some weeks, and doesn’t on others, even though she is providing the same care.

It is understandable that Angela would want to be paid for the care she is giving her mother, especially when it is interfering with her current job. Also if it wasn’t for this care, Renee would be in a nursing home. But, Angela must be sure to go about getting paid correctly.

The National Family Caregiver Support Program was created by the federal government to support family caregivers. While reviewing this site, Angela found out where she can get respite care for Renee, so she can take a much needed vacation with her husband. She also discovered how she may get paid, without feeling bad about her mother’s dwindling funds, and how these payments can continue after her mother runs out of money.

Often overlooked, the Veteran’s Aid and Attendance pension benefit is a great source of money to pay family caregivers to provide care at home. This money is available to veterans who served during a period of war. Pension money is also available to the widows of these veterans. This benefit, under the right circumstances, can provide up to $1,949 a month in additional income to pay family members to provide care at home. Luckily, Angela’s late husband was a WWII veteran and she qualifies for aid. However, she must have a professionally drafted caregiver contract in place, get a medical evaluation, meet income and asset qualifications, and have proof of medical expenses and care needed.  

Alternatively, or sometimes in addition to, a long term care insurance policy covers home care and payment to the care giver from this source could be arranged. Some policies require the care provider to be through a licensed home care agency, but others will pay for individual aides certified as such. This would require some training by the family member to become certified, unless they had a nursing background, like Angela. Renee did not have a long term care insurance policy in place. However, there are policies that pay a daily benefit amount to the insured to use as they want to pay for their care.

In some cases the elder has the funds to pay for their own care. If a family member is giving care it is very important that a professionally drafted caregiver contract be in place. Without one, any payments could disqualify the elder from certain MassHealth/Medicaid long-term care payments. Lump sum payments for care and/or retroactive payments are never a good idea.

A caregiver contract prepared by an elder law attorney like Attorney Kristina R. Vickstrom, will be a signed and dated agreement will outline the services provided as well as the amount of pay for these services. The contract will eliminate questions about what is expected from both parent and caregiver as well as providing a legitimate contract and a clear and consistent payment record of services to qualify for MassHealth/Medicaid. The contact will be treated as an employer/employee relationship and payroll records must be kept with taxes paid. Retroactive payments for care-giving are almost never allowed when applying for MassHealth/Medicaid.

The family member providing such care, like Angela, can not only save their loved one from needing nursing home services outside of the home, but also could protect assets in the event that long-term care is needed in the future. Please contact Vickstrom Law to set up a consultation if you are interested in learning more about the right way to get paid to take care of your loved one.

Grandparents Raising Grandchildren- Legal Options and Financial Support

With the decline of the traditional nuclear family, individuals over 50 are increasingly vested with responsibility for the caretaking of young children and adolescents. Financial problems are the primary cause of seniors having to assume more “traditional” child-rearing duties. Whether due to a divorce, military service, substance abuse, mental illness or other secondary issues, some adults may be unable or simply unwilling to be good parents themselves.

After suffering ten years of domestic abuse at the hands of her husband, Jennifer finally filed for divorce and moved herself and her daughter in with her parents, Gerry and Donna Daly. Although the relocation was supposed to be temporary, Jennifer has exhausted her bank accounts, refuses to obtain employment, and has sunk into a deep depression. Gerry and Donna are proud, retired grandparents who want to ensure that their grandchild is raised with love, discipline, and opportunity. They have been expensing the household’s grocery bills and clothing for the child, as well as toting her from play-dates to extracurricular activities. The Dalys’ other children have begun to voice concern over their parents’ spending, noting that their income is supposed to sufficiently cover a two-person household and not be stretched to support a four person family. While Gerry and Donna understand their concern, they don’t believe in asking Jennifer and her daughter to leave and have the utmost confidence that Jennifer will get back on her feet. What are their legal and financial options?

Many times, the child-rearing duties that grandparents assume will cause a real strain on seniors’ budgets. Child care costs can grow exponentially dependent on the length of time a grandparent will be asked to assist in raising his or her grandchild. Given this responsibility, these seniors might consider obtaining legal authority to make decisions for that child – on important issues such as healthcare and schooling – and financial assistance from the State.

In Massachusetts alone, 67,781 children reside in grandparent-headed households. Although the Daly’s granddaughter is physically living in their home and they are raising her, Gerry and Donna do not have any legal rights or authority to make decisions on behalf of the children. Jennifer could sign a form giving her parents ‘caregiver authorization.’  This is a caretaking option provided by the Massachusetts Uniform Probate code and allows parents to authorize a designated caregiver to exercise “concurrent parental rights” on healthcare and schooling matters. Provided that the caregiver lives with the child, the authorization is valid for two years and does not require court approval. Caregiver authorization is an alternative to filing for Guardianship of a Minor, a court decree effectively suspending the rights of the parents and transferring them to a guardian entrusted with caretaking responsibility. Depending on Jennifer’s state, this may be necessary for the Dalys.

If you are on a fixed income and unable to get help from a child’s parents, the child may be eligible for payments from Massachusetts’ Transitional Aid to Families with Dependent Children and medical coverage through MassHealth. For further information on assistance through these and similar programs, consider reviewing the Massachusetts “Resource Guide for Grandparents Raising their Children.”

While it may be your desire to become legally and financially responsible for your grandchildren, you are not required to as a matter of law. It is ultimately up to the Commonwealth to assign custody to a suitable individual. However, if circumstances have placed your grandchildren in your home, it is helpful and oftentimes necessary to review your present legal options and to adapt an existing estate plan to ensure that the unique challenges of caring for grandchildren are addressed. Contact Vickstrom Law to your situation and get informed on your options.

Marrying Later in Life: Do I Need a Prenup?

Welcome to the new singles scene. With the average life expectancy in the United States about 78 years old, people are living longer and healthier lives than ever before and more and more seniors are falling in love. However, what can be a thrilling and romantic time for an older couple can also be an anxious time for family members that have expectations regarding inheritance. It is worth noting that once married, a spouse will automatically inherit, at the very least, a portion of deceased partner’s estate, unless measures are taken to avoid this.

After her husband of 49 years passed away, Louise never thought she would remarry. After six months she met Frank, a man fifteen years younger, who occasionally accompanied Louise to dinner and church. About a year and a half after her husband died, Louise called her daughter, Emily, saying she’d been scoping out wedding venues. Prior to the wedding, Emily pushed that the couple sign a prenuptial agreement. Her mother had considerable assets and she worried that Frank might be after her money. Louise brought the concerns to Frank, who balked at the idea, declaring that their marriage would endure forever. After some discussion, Louise became adamant, wanting to preserve some assets and family property for her children as a condition of the marriage. Ultimately, the prenup was a deal-breaker; Frank was either interested in little more than her wealth or was too hurt to come to turns with the reality of their relationship.

Without a prenup in place, your new spouse could invalidate your previously existing estate plan. For example, suppose Louise intended her home to pass to Emily. With improper estate planning and no prenup, Frank could inherit her house and pass it on to his heirs when he dies. Disinheriting her children would probably not have been Louse’s intention.

One common perception of a prenup is that the agreement entails fear that a marriage will fail. Why draft a prenup if two individuals love and trust one another? Frank may have had these concerns. While a premarital agreement might feel unsatisfying, over one-quarter of senior marriages do end in divorce. With accumulated resources and descendants, a prenup can ensure that a spouse’s separate assets will pass to his or her own loved ones upon marriage dissolution. Though it may not seem fitting with the romance of a wedding, think of a prenup as an open and honest disclosure of both parties’ assets and agreement as to their distribution.

A prenup is not an estate-planning tool and may not take precedence over a will or trust. The married later in life couple must also be sure to implement a solid estate plan to ensure their joint wishes are not undermined by the surviving spouse. To ensure that your prenuptial agreement is valid, it must be in writing, signed voluntarily, read and understood by both parties, disclosures must be open and honest, and the agreement must be fair and not contain illegal provisions. If you have already remarried and did not negotiate a prenuptial agreement, these issues may be resolved with a post-nuptial agreement and through proper estate planning.

Contact Vickstrom Law for more information concerning prenuptial or postnuptial agreements as well as proper estate planning for later in life marriages.

Can I Contest My Sister’s Will?

In the coming years we will see a  marked increase in the number of cases challenging the legality of a will on the grounds of mental incapacitation of the person making the will. Though the reason for the increase in will contests is debatable, the growing number of elders with medical issues affecting their cognition; the transfer of wealth between World War II and baby boomer generations; and the change in the traditional nuclear family certainly play a role.

Mary lived alone on a large estate for fifteen years following her wealthy second husband’s death. Her only living relative was her sister, Louise. The two have been close since childhood, but in recent times the frailty of both women has led to fewer and fewer visits. Mary passed away in January after a three-year battle with endometrial cancer. Although weakened by age and sickness, often delusional and dependent on prescription medication, Mary executed a second version of her will in 2010 (unbeknownst to Louise) with the assistance of her live-in caregiver, Kate. When the terms of Mary’s will are administered, Louise discovers that she is to receive just $1,000 while Kate is the primary benefactor of Mary’s $450,000 estate.

Many times, the relative of one who has recently passed believes that they were unjustly left out of a will. Perhaps due to the mental state of the deceased, the relative might believe that the deceased was delusional in granting a non-relative a financial windfall. In the above example, Louise would like to know whether she has any legal recourse to challenge Kate’s award. She feels that Kate knew about Mary’s delusional capabilities and possibly took advantage of Mary in receiving the majority of Mary’s estate, and finds it hard to believe that her sister would not have left her more. However, it is also reasonable to see that Mary might have felt indebted to Kate and wanted to provide her with a genuine token of appreciation for her services.

In order to create a valid will in Massachusetts a person must possess “testamentary capacity”. In most states, this means that the person creating the will understands the nature of the document, the worth of her assets, and her relationship with whomever she is transferring them to. Testamentary capacity requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of her property. The person executing the will needs only to be aware of her actions during the period of time she is making the will. The fact that he or she doesn’t remember it the day after does not invalidate a will.

Although wills contests arise frequently, proving that a person is without testamentary capacity is difficult because signing a will does not require a great deal of coherence nor consistency. Louise would have be allowed to contest Mary’s will in the probate court, but it likely would lead to a lot of costly litigation. Most often the disagreeing parties will negotiate a settlement to mitigate the litigation.

If a relative finds themselves in a similar position, they should contact an attorney experienced in Estate Administration to discuss the possibility of a legal claim. If you considering disinheriting an heir who might attempt to challenge a will’s provisions, speak to an experienced Estate Planning attorney about avoiding the probate process altogether through the use revocable or irrevocable trust planning.

Contesting a will is a procedural and difficult process. Yet, if you feel that a loved one lacked the mental capacity to transfer his or her estate, contact our office to discuss your options.

Parent-Child Role Reversal

How the New Massachusetss Safe Driving Law Affects You or Your Elderly Loved One

The Safe Driving Law has officially become effective in Massachusetts as of Sept. 30, 2010.  Massachusetts now joins an increasingly growing number of states that ban texting while driving.  However, a major part of this bill is also targeted at elderly drivers who are over the age of 75.

On June 2, 2009, a 93-year-old driver hurt a mother and toddler in a stroller when he drove his car into a Danvers Wal-Mart. He stepped on the gas pedal because he thought he was stepping on the brake.  The next day, a 73-year-old Middleboro driver accidentally drove her minivan into a crowd of people attending a Vietnam War Memorial in Plymouth. As a result, eight people went to the hospital. Read this blog for more information.  In an effort to reduce the number of accidents involving elderly drivers, Massachusetts legislators passed the new Safe Driving Law.

The new Safe Driving Bill is eight pages long but can be reduced to a few major points affecting elderly drivers:

• Drivers can no longer compose, send or read text messages while driving.
• If you’re 75 years old or older, you must renew your drivers license in person at the Registry of Motor Vehicles.
• If you’re 75 years old or older, you have to take a vision test every five years when you renew your license.
• A health care provider or police officer who feels an individual cannot mentally or physically operate a motor vehicle safely can request an evaluation of the person’s ability to possess a license.  Such a request, however, cannot be made solely based on a person’s age.

The law is also designed to remove problem drivers from the road and encourage people to drive more carefully by reducing the number of “surchargeable incidents” (anything that causes insurance premiums to rise, including at-fault accidents, speeding tickets, etc.).  A driver involved in three such incidents in a two year time span faces license suspension.

Estate Planning Myths Explained

Occasionally, I run across a great article written by someone else. Today is one of those days and I just had to share it with you. Clients are often confused when they come in for initial consultations and have preconceived notions about planning their estates based on things that they’ve heard from their friends, neighbors, hairdresser, etc. Most of the time the information shared is incorrect, or at least incorrectly applied to their situation. This article does a great job of debunking the most popular “myths” of estate planning.  I only added one little thought in bold below. Thank you to my colleague, Attorney Gina Barry, from Bacon & Wilson in Springfield for putting this article together…. and as far as I know unicorns are still mythical creatures.  

Certain ideas with respect to estate planning are widely accepted, yet unfortunately, inaccurate. This article will reveal and explain the most commonly stated estate planning myths. 

Myth No. 1: ‘If I have a valid will, my estate does not have to go through probate.’

Many people believe that having a will means that their estate will not have to be probated when they pass away. A will is a document that, in part, gives instructions as to the distribution of the assets in the decedent’s probate estate. The assets in the probate estate are those assets that are held in the decedent’s name alone that do not have a designated beneficiary. Thus, whether or not probate is needed is not based upon whether or not the decedent had a will; rather, it is based upon how the assets are owned by the decedent.

If the decedent left probate assets, then in order for their will to ‘speak,’ a probate estate must be opened. If all the assets held in the decedent’s name are jointly owned with a right of survivorship or have named beneficiaries, then there is no need for probate.

Myth No. 2: ‘I can give away $10,000 to as many people as I want each year, but if I give more, then I have to pay gift tax.’

This myth emanates from the gift-tax system. In 2010, the rule with respect to gift tax is that you may give up to $13,000 to as many people as you want without having to file a gift-tax return. Note that the amount that can be gifted is stated incorrectly in the myth because most people remain unaware of the ongoing increases to the allowable gift amount.

Also under the current rules, even if a gift-tax return must be filed because more than $13,000 is given to one person, the giver of the gift will not pay any gift tax until he or she has gifted more than $1 million during their lifetime. Thus, if a person has $100,000 and gives all of it away in one year to one person, they will need to file a gift tax return, but they will not owe any gift tax because the gift does not exceed the lifetime threshold.

The estate tax system is NOT to be confused with MassHealth/Medicaid planning. If nursing home care is eminent and you intend on having MassHealth/Medicaid pay for your care, gifts of any size are not allowed and can lead to MassHealth/Medicaid disqualification.

Myth No. 3: ‘I can give away assets when I enter a nursing home and still obtain Medicaid benefits.’

When faced with a nursing home bill of approximately $8,000 per month, many people wish to obtain Medicaid benefits to pay for this care. In order to obtain Medicaid benefits, an asset limit must be met; therefore, assets valued above this amount must be reduced to the asset limit before benefits will be granted. In their efforts to reduce the excess assets, many people believe that they can gift the excess assets due to the gift-tax exclusion explained in Myth No. 2. While a person can make a gift of up to $13,000 per person in 2010 without filing a gift tax return, the Medicaid program is not governed by the gift tax rules.

The Medicaid program imposes a penalty when any assets are given away within five years of the application for benefits, except in very specific circumstances. This penalty results in being unable to obtain Medicaid benefits for at least five years after such a gift is made. Thus, a gift of any amount will typically result in a penalty being imposed even if the gift does not have to be reported on a gift-tax return.

Myth No. 4 – ‘If I need nursing home care, Medicare will pay for my care.’

In part, this myth is perpetuated due to the fact that “Medicare” sounds very much like “Medicaid,” which does pay benefits for nursing home care for approved applicants. Medicare Part A will pay for medically necessary inpatient care in a skilled nursing facility, but only following a three-day hospital stay. Medicare will pay for up to 100 days of skilled nursing care or rehabilitation services. The actual length of benefits could be much shorter than 100 days if those services are no longer required.

When Medicare benefits are paid, Medicare pays 100% of the cost for the first 20 days, but only 80% of the cost of the next 80 days. Most Medicare recipients also have Medigap insurance, which will pay the balance not paid by Medicare. When Medicare benefits are exhausted, an alternative payment source is needed to pay for ongoing nursing home care.

Questions? Wondering if something you’ve heard is a ‘myth?’

 This article was originally published in Business West.

Hoarding: How to Help a Loved One Declutter

The issue of hoarding has recently gathered a great deal of attention, particularly due to news reports and popular television shows.  However, hoarding is not a new or a small problem. The problem of hoarding has been documented since the turn of the century and is thought to significantly affect nearly 15 million Americans, many of them elderly. A great article recently appeared in the Boston Hearald dealing with the clinical aspects of Hoarding.  Unfortunately, research has been lacking in this area – until now.

On July 14, 2010, a Bellingham, Massachusetts couple and their dog were found dead in their home.  The ultimate factor in their deaths: hoarding.  Authorities deduced that 75-year-old Richard Lamphere tripped on a pile of trash, fell on top of his wife, 62-year-old Susan Abraham and one of their dogs.  Lamphere died instantly from head injuries; Abraham was severely injured in the fall and died later from her wounds.  Police confirmed that the couple were hoarders.  They had trash and belongings piled everywhere inside their home.  The conditions were uninhabitable and clearly unsafe. For the full story, see this article.

When assessing the severity of a loved one’s hoarding situation, several questions are important to remember:

• Can the occupant access doors in case of an emergency?
• Does he have access to the kitchen to prepare and store food?
• Can he access the bathroom facilities? Can the bathtub/shower be utilized?
• Can the resident safely reach their bed or have they made other sleeping arrangements?
• Are the home’s mechanical systems in working order (electrical, plumbing, heating)?
• Are pets being cared for?
• What health hazards are present (mold, decaying food, bodily waste, etc.)

If the basic needs of an occupant cannot be met, then it is time to consider intervention.

The difficulty with trying to help a hoarder is that most of them do not seek or want any “help”.  In fact, hoarders typically do not comprehend that they actually have a problem.  Thus, attempts to “clean out” or assist a loved one in “tidying up” his or her home should be done with care and patience.  And, although perhaps difficult, refrain from making judgments.

Tips to aiding someone who hoards include encouraging them and helping them establish new relationships.  Gently remind them that their grandchildren will be able to come and visit if they clean their house.  Perhaps it is time to participate in a local community activity for seniors.  If they are busy with other activities or plans, then getting rid of “stuff” may seem less consequential to them.  Many local companies specialize in professional, home organziation and cleanouts. Additionally, you may look into a hiring a certified home maker a few hours a week to keep up with housework and tackle clutter habits.

As a last resort, do not be afraid to contact the authorities or professional help.  Let someone else be the “bad guy”.  The story of a local hoarder who has made progress over the years can be found here.

Finally, a temporary or limited Guardianship may be necessary, at least until improvements can be made for the individual’s overall safety.   For more information and advice contact your local Elder Services or area Agency/Council on Aging.