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.

To answer these questions, ElderLawAnswers asked two experienced Estate Planning and Elder Law attorneys to evaluate three leading online will preparation and estate planning programs: Nolo’s Online Will, BuildaWill, and LegalZoom. Their findings and ElderLawAnswers’ conclusions are presented in a five-page whitepaper that is available for free on ElderLawAnswers website.

The conclusion: “We conclude that while online estate planning could possibly work for people who have little or no property, small savings or investments, and a traditional family tree, the significant remainder of the population should not rest easy using one of these programs and should instead consult with a qualified Estate Planning attorney. In other words, in all but the most commonplace Estate Planning situations (and only an attorney can determine what is “commonplace”), do-it-yourself estate planning programs can be a risky, and often quite costly, substitute for in-person planning with an experienced estate planning attorney.”

I encourage you to read the whitepaper and see for yourself. Common issues with these type of estate plans include oversimplification. For example they do not explain the complexities of naming too many decision makers to serve at the same time, nor do they explain why a minor child or an elder parent may not be a good choice to name as an agent. They often overlook tax laws. Its important to remember that each State’s probate laws and tax laws vary. Further, mixed marriage situations are never a good fit for these programs. Additionally, users may miss powerful opportunities to sheild a child’s inheritance or plan for a special needs child. Finally, there is the issue of liability. Who do you hold accountable if a mistake was made?

In my office alone, I have several consultations per month where I assist clients in backing out of poorly drafted, do-it-yourself estate plans, and into something that makes sense for them and their families. Its very important to remember that there are no one-size-fits-all when it comes to planning one’s estate but that the utmost care should be placed in choosing the right person (Estate Planning or Elder Law Attorney) to help you, and not the right computer program.

Olga M. Rodrigues and her now deceased husband purchased a home in September 1979. Mr. Rodrigues died in 1994, and Mrs. Rodrigues became the sole owner of the home. Shortly thereafter, she transferred the home into a revocable trust where she was the trustee and her children were the beneficiaries of the trust upon her death. Once the home was transferred into the trust, Mrs. Rodrigues no longer owned the legal title to the home; at the point, she only owned equitable title. In April 2008, less than a year before bankruptcy proceedings were filed against her, Mrs. Rodrigues executed a Declaration of Homestead and recorded the declaration in the Bristol County Registry of Deeds. The declaration stated that she owned, possessed, and occupied the home as her residence and homestead under the Massachusetts General Laws, chapter 188. This declaration was only partially correct because she did not actually own the home, but she did possess it and she was occupying it.

Currently, the law dealing with the Massachusetts Homestead Exemption states that a homestead interest “may be acquired … by an owner or owners of a home or by one or all who rightfully possess the premise by lease or otherwise.” M.G.L., c. 188, §1 (2007). Although Mrs. Rodrigues was no longer a legal owner of the home, when she recorded her Declaration of Homestead, she rightfully held possession of the home and evidenced her intent to occupy the premises as her principal residence. Judge Feeney, the bankruptcy court judge in this case, held that Mrs. Rodrigues’ actions satisfied the Massachusetts law concerning homestead and that she had validly exercised her homestead exemption. The result of this case has encouraged the Massachusetts state legislature to rewrite M.G.L., c. 188, to make it clearer and include language about trusts and the homestead exemption.

Going forward, the proposed law moving through the state legislature specifically uses language allowing a trustee of a trust containing real estate to make a declaration of homestead for the person or persons occupying the premise. The law states that the person claiming the homestead exemption must prove that he or she is using or intends to use the home as his or her principal residence. If this law passes, holding your home in a trust may be a safe way to protect it from unsecure creditors. Please visit the current text of Senate Bill 2401, An Act Relative to the Estate of Homestead.

To make health care more affordable for seniors, the Act addresses the Medicare Part D prescription drug coverage gap, otherwise known as the “donut hole.” In 2007, over 8 million seniors fell into the “donut hole” and could not receive coverage for their prescription drugs. Under the Act, any seniors who fall into the donut hole this year will receive a $250 rebate check from the government. In 2011, the Act institutes a 50 percent discount on all prescriptions drugs in the “donut hole,” and by 2020, the Act will completely close that gap.

Starting in 2011, the Act provides for free wellness checkups as a preventive care measure. It also eliminates all deductibles, copayments, and other cost-sharing for preventive care in Medicare, in an effort to make preventive care more accessible and attractive to seniors with modest means. The Act also creates a voluntary, long-term care insurance program that will provide a cash benefit to seniors and people with disabilities seeking certain types of long-term care that will allow them to stay in their homes.

In other efforts to make health care more affordable for seniors, the Act will reduce unwarranted subsidies to insurance companies by putting Medicare Advantage payments more in line with the costs of Medicare programs. This will ultimately save Medicare more than $150 billion over the next 10 years. The Act also seeks to reduce fraud and waste within the health care system by expanding the efforts the Department of Health and Human Services and the Department of Justice have already made in the past few years, and giving law enforcement officers more authority to crack down on those engaging in health care fraud. In fiscal year 2009, $2.51 billion acquired through these anti-fraud efforts was deposited in the Medicare Trust Fund, a 29 percent increase over fiscal year 2008. This Act provides more tools to continue and expand the anti-fraud efforts already in place, saving Medicare recipients billions of dollars in the coming years.

The Act does not only seek to make health care more affordable; it also seeks to make health care more effective for seniors. To achieve this goal, the Act seeks to improve the quality of care seniors receive in nursing homes and other long-term care facilities. It creates a standardized form for filing complaints with the State concerning long-term care facilities, and it requires states to develop and implement resolution processes for these complaints. It also establishes a program for national and State background checks of all long-term care facilities employees that have direct access to patients.

This entry is only a brief summary of various parts of the new law. More information can be found here. Current Medicare recipients will be receiving an informational brochure in the next few weeks regarding these programs.

In April 2008, the Massachusetts Health Care Quality and Cost Council (MHCQCC) issued its annual report recommending that Massachusetts establish a pilot program to improve communication between patients and clinicians, and other interested parties, regarding end of life treatments. The MHCQCC found that many patients nearing the end of life were unaware of the treatment options available to them, or, if patients had been aware of such treatment options and had discussed them with their doctors previously, nothing was in place to ensure that their preferences were honored. Therefore, the Massachusetts legislature enacted legislation in August 2008 establishing a demonstrative program for the MOLST process in one community in Massachusetts: Worcester. (Yay, Worcester!)

The MOLST form is fairly simple and easy to read; the most difficult part is actually making the decisions and putting them down on paper. The form is only two pages long, and only two sections must be completed in order for the form to be honored. These two sections are Section D (patient information – specifically who is signing the document on behalf of the patient) and Section E (physician information). In   Section D, it is possible for the patient, the patient’s health care proxy, or the patient’s guardian to sign on his or her behalf. If a guardian is signing for the patient, the guardian must ensure that s/he has the legal authority under the guardian appointment to do so. This may require consultation with the patient or guardian’s Elder Law attorney.

If any other section of the form is not filled out, the health care agent is not limited in his or her decisions for life-sustaining treatment for the patient. Sections A, B, C, and F ask the difficult questions regarding resuscitation, intubation and ventilation, hospitalization, respiratory support, dialysis support, and artificial nutrition and hydration. It is critical that you speak with a physician before making these decisions so that you fully understand the meanings of the terms used and the potential consequences. Once these sections are filled out, they must be honored by all health care professions in Massachusetts, where clinically appropriate. The MOLST form is different from a Living Will or another document expressing your “final wishes” because it carries more authority and is more likely to be honored. A Living Will or final wishes document is only used by health care professionals to keep your wishes in mind when making decisions about treatment. While the MOLST form is not currently legally binding, health care professionals are strongly encouraged by the state to honor it.

Finally, Section G simply asks for the contact information of the health care agent. There is also room on the form for other treatment preferences, in which you can more clearly articulate your wishes. There is an expectation that the form will be reviewed throughout the patient’s life so that if his or her preferences change, those preferences will still be honored.

View a sample MOLST form here.

MOLST in Massachusetts from Commonwealth Medicine on Vimeo.

In the 1980s, the first Gay-Straight Alliance was formed here to address the needs of LGBT youth who felt isolated in the school system. Now, the focus is on LGBT seniors. In 2008, the Elder Services of Worcester, Worcester Senior Center, and Central MA Agency on Aging came together to form a support network for LGBT seniors in central Massachusetts.They named this group WLEN (Worcester LGBT Elder Network), and in 2009, WLEN applied for, and received, a grant from Greater Worcester Community Foundation’s GLBT Partnership Fund. The goals of the grant were to reach out to various organizations throughout Worcester and the surrounding areas that state they are “open and affirming,” to create a social network for LGBT seniors and caregivers, and to train organizations on how to work with, and be more compassionate toward, LGBT seniors.

Because of the grant, WLEN was able to hire for two part-time staffers. Together, they plan and organize social events and meetings for LGBT seniors, and they do marketing and outreach throughout the Worcester area. Over 25 people attended their first meeting in June 2009, and their members consist of LGBT seniors and caregivers generally between the ages of 50 and 75. They also formed three committees to assist in promoting their goals, the Social Committee, the Training Committee, and the Resource Committee.

The Training Committee works to provide information to various organizations in the area to train their staff on how to be more conscious of issues affecting LGBT seniors. The committee is currently working hard to plan a Transgender Training at the end of May and an LGBT conference for aging service providers in September. Every month, WLEN sends out a newsletter that posts some information on issues like discrimination, stereotypes, and relating to the individual, so that organizations can be more equipped to train their staff, and caregivers can be more aware of their interactions with LGBT seniors.

The Resource Committee is currently working on creating a Resource Guide that will be a means of communicating with local aging service agencies and LGBT seniors and caregivers in the area. They are continually trying to increase their mailing list to reach as many people as possible. They research the needs of LGBT seniors and send out literature to the organizations and members of the community to educate people more efficiently. They are doing everything they can to let LGBT seniors know that there is a social network available to them.
If you are an LGBT senior or a caregiver looking for more information or support, please visit eswa.org, and read the WLEN newsletters, or contact Kathy McGrath at

]]> http://vickstromlaw.com/2010/05/aging-with-dignity-lgbt-seniors/feed/ 0 http://vickstromlaw.com/2010/04/obamas-middle-class-task-force-recommendations-include-caregiver-initiative-and-retirement-funds-security/ http://vickstromlaw.com/2010/04/obamas-middle-class-task-force-recommendations-include-caregiver-initiative-and-retirement-funds-security/#comments Wed, 14 Apr 2010 19:05:03 +0000 Kristina http://vickstromlaw.com/?p=443 One year ago, President Obama appointed a Task Force on the Middle Class to create a plan to help middle class families get back on their feet and bring our economy out of recession. Recently, this task force announced its recommendations, which included a $102.5 million Caregiver Initiative, and a plan to secure your retirement funds.

Support for Family Caregivers:
It is estimated that 38 million Americans provide unpaid care for an aging relative. Many of these caregivers have other jobs and small children to care for as well. The $102.5 million Caregiver Initiative would add $52 million to the Department of Health and Human Service’s budget for caregiver support programs and $50 million to programs that provide transportation help, adult day care, and in-home services for the elderly. Providing more government support for these programs will hopefully help lower costs so that caregivers of aging relatives can get the help they need and focus more on their jobs and immediate families. The Caregiver Initiative will also allow more seniors to stay in their homes with safe, reliable care, without placing an undue burden on their loved ones.

Retirement Security:
It is estimated that 78 million working Americans lack employer-based retirement plans. This means that about one half of all working Americans are either not saving for retirement or are being forced into doing so through private mechanisms that do not afford them certain key benefits. The task force is recommending that the Obama Administration establish a system of automatic IRA direct deposits where employers will be required to enroll their employees in an IRA program unless the employees opt out. Under the recommendation, eligible families will receive funds matching their contributions through the Savers Tax Credit. For families making under $65,000, the Savers Tax Credit will match 50% of the first $1,000 contributions, and a partial credit will be allowed for families making up to $85,000. This credit will also be a refundable credit, meaning that even if the taxpayers do not owe any taxes, they will be able to reap the full benefit of the credit.

Finally, the task force developed other recommendations to improve the transparency of 401(k) plans. This heightened level of transparency is meant to ensure that workers and plan sponsors have information they need to ensure that they are receiving investment, record-keeping, and other services at a fair price. Obviously, the first question here is: what information will be provided? Will workers receive invoices that show where all their fees are being spent? Or, will these documents show where their fees are being spent AND what other plans charge for the same services? How much will these recommendations actually improve transparency? All of the recommendations must go through Congress before anything will happen, so only time will tell.

Other recommendations concerning 401(k) plans include: encouraging plan sponsors to give unbiased investment advice to workers, making annuities and other forms of guaranteed lifetime income more available, and requiring clear disclosure on target-date funds. These recommendations are not ironed out clearly yet, and Congress is likely to spend a great amount of time working through them.

The full fact sheet on the recommendations presented by the task force includes recommendations on expanding the Child and Dependent Care Tax Credit and making college more affordable.

The Circuit Breaker Tax Credit is meant to help low to moderate income seniors whose real estate taxes or rent take up at least 10% of their income. Both you, and your spouse, if you are married, must be age 65 or older as of December 31, 2009, and if you are married, you must file a joint return in order to qualify for this credit. No one else can claim you as a dependent, and you must rent or own a home in Massachusetts as your principle residence. This means that if your principle residence is in Florida, you are not eligible for this credit. You are also not eligible if your rent is paid through a federal or state subsidy.

The income limits to qualify for this credit are relatively high, which is a good thing because it means many seniors in Massachusetts can take advantage of it. If you are filing as a single adult, your income must be below $51,000; if you are filing as head of household, your income must be below $64,000; and if you are married filing jointly, your combined income must be below $77,000. Remember, though, that your rent or real estate taxes must be at least 10% of your income in order to qualify. So, if you are married filing jointly and your income is $75,000, your rent or real estate taxes must be more than $7,500. Also, be aware that income here includes social security, retirement, pensions, annuities, and other nontaxable sources.

If you have not yet filed your taxes, and you are interested in filing so that you can take advantage of this credit, there are many organizations that offer free tax assistance. The Circuit Breaker Tax Credit form is easy to fill out, and if it is the only reason you want to file a return, you should not pay a paid professional. In Worcester, there are four VITA (Volunteer Income Tax Assistance) sites, and volunteers at these sites would be happy to prepare a return for you. This is a free service, and contact information for the sites is listed below. You can also visit your local library to pick up the forms you need (Massachusetts Form 1 and Schedule CB), or visit this website to file your return electronically on your own. Finally, if you have not taken advantage of this credit before, you can file Massachusetts Form CA-6 (Application for Abatement/Amended Return) and Schedule CB to obtain the credit for the past three years.

In these hard economic times, we need all the help we can get. If you are over age 65 and more than 10% of your income goes to rent or real estate taxes, take advantage of this credit. The maximum credit amount for 2009 is $960, which is a good chunk of change right in your pocket.

Worcester Community Action Council Inc.
Last day open: April 14th
484 Main Street, Suite 320
Worcester, MA 01608
508 754-1176

Plumley Village
Last day open: April 13th
16 Laurel Street
Worcester, MA 01608
508 770-0508

Main South Community Development Corp
Last day open: April 14th
875 Main Street
Worcester, MA 01610
508 752-6181

Worcester State College
Last day open: April 15th
Sullivan Building, 2nd Floor, Room 220
486 Chandler Street
Worcester, MA 01602
508 929-8635

On March 10, 2010, Massachusetts joined a federal suit against Johnson & Johnson for paying millions of dollars in kickbacks to Omnicare, Inc., the largest pharmacy in the US that specializes in providing drugs to nursing home facilities. United States Attorney Carmen Ortiz argues in the complaint that substantial monetary kickbacks can be especially harmful in the nursing home context because nursing home patients have little to no control over the medical care they receive. He states: “Nursing home doctors should be able to rely on the integrity of the recommendations they receive from pharmacists, and those recommendations should not be a product of money that a drug company is paying to the pharmacy.”

The primary drug at issue in this case is Risperdal, an antipsychotic drug that is usually prescribed for patients with severe mental illnesses, such as schizophrenia. It is legal to prescribe antipsychotics for “off label” uses to treat people with dementia, but these drugs may also raise the risk of death among such patients. At the same time, antipsychotics can help patients with dementia suffering from extreme agitation and sleeplessness. When prescribed in small doses, these drugs can actually have amazing effects on making the lives of patients with dementia more bearable. However, it is important that the prescriptions and dosages be reevaluated regularly to determine their effectiveness and potential harm to the patient.

On March 8, 2010, the Boston Globe reported that 2,483 nursing home residents in Massachusetts were treated with powerful antipsychotic drugs in 2009. This data was collected by the federal Centers for Medicare and Medical Services, and Massachusetts has the 12^th highest rate in the nation for nursing home patients on antipsychotic drugs. While these statistics may appear alarming at first glance, any good researcher knows they don’t paint the whole picture. Many patients with dementia are only put on small doses that do not harm them in order to lower their agitation and improve their sleeping habits, but it is also critical not to simply overlook these statistics. As noted earlier, two after the data was published in the Boston Globe, Massachusetts joined an important federal suit against one of the drug companies that promotes these potentially harmful practices.

It is extremely important to be educated and informed regularly about the drugs your loved one is taking, especially if s/he is in a nursing home. While issues concerning antipsychotic drugs are currently making headlines, it will take individual conversations to ensure that your loved ones are being treated appropriately. Sometimes antipsychotic drugs are extremely beneficial for a patient with dementia, but if not administered properly, they can also be very damaging. Open communications between you, the patient, the patient’s guardian (if that is not you), the patient’s primary care physician, and the administrators at the nursing home s/he lives at, will make it possible to ensure that your loved one is on the right medication so that s/he is safe and comfortable.

Under the Deficit Reduction Act of 2005, an individual may still be eligible for MassHealth if certain assets were transferred to specific individuals. One of your biggest assets is probably your home. You can transfer title to your home to the following individuals without it being counted and without subjecting you to the 5-year look-back period: (1) your spouse; (2) your child who is under age 21, or is blind or permanently disabled; (3) your brother or sister who has lived with you for at least one whole year prior to the day you entered an institution and holds an equity interest in the home; or (4) your “caregiver” child.

A “caregiver” child is a son or daughter that lived with you for the two whole years prior to the date you entered an institution and provided the care you needed to remain in your home. If you were healthy enough to live in your home without your child’s help, a transfer of your home to that child will not protect you from the transfer rules. All other assets can also be transferred without being counted or subjecting you to the 5-year look-back period if they are transferred correctly and fall within the other exceptions to the general rule.

Any and all assets can be transferred to your spouse or to someone else for the sole benefit of your spouse. Your spouse may also transfer any and all of the assets to someone else for the sole benefit of your spouse. This means that someone else would hold legal title to the property, but it would only be used for the needs and wishes of your spouse.

Assets may also be transferred to your child if he or she is blind or permanently disabled. You have the option of transferring such assets directly to your child or to a trust for the sole benefit of your child. Either way, these gifts would not be subject to the new transfer rules.

Finally, you may transfer any and all of your assets to a trust for the sole benefit of any disabled person under age 65. Under this exception, a disabled individual is someone whose mental or physical impairment is so severe that he or she will be unable to perform substantial gainful work in order to provide for him or herself. This mental or physical impairment must be expected either to result in death, or to last continuously for a period of at least one year. There is no statutory requirement that you be related to this disabled individual for your transfers to fall within the exception.

While exceptions to the general rule on transfers of gifts do exist, it is very important that you speak with an attorney before making any transfers to ensure that you will still qualify for MassHealth. The 5-year look-back period is a long time to wait to be eligible for the services you need.