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.

Letting Software or Online Service Plan Your Estate: Is It Worth the Risk?

There are several websites that offer customized, do-it-yourself wills and other estate planning documents. These computer-based services appear to offer the consumer a cost-effective and convenient alternative to visiting an Estate
Planning or Elder Law attorney. Or do they? Is online estate planning worth the convenience and initial savings? How do the documents created compare to those that a qualified attorney would produce?

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.

Rodrigues Case and Pending Massachusetts Legislation make Homestead Protection for Trusts a Reality (Finally!)

On February 23, 2010, the US Bankruptcy Court in Massachusetts finally did what the Massachusetts state legislature has been unable to do for years: the court ruled that the Massachusetts Homestead Exemption is applicable to an owner whose property is in a revocable trust. Since this decision, In re Rodrigues, Bankr. D. Mass. Case No. 09-11960-JNF, the legislature has been working to pass a new statute that will replace Massachusetts General Laws, chapter 188, the statute concerning homesteads. The legislature is very close to passing a new law. Today we will review the Rodrigues decision, the pending Massachusetts legislation, and how it may be beneficial to you.

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.

More Protection Than a Health Care Proxy Alone?! MOLST- a Pilot Program in Worcester

Some people think that Elder Law and Estate Planning attorneys are only useful further down the road. They think, “I’m healthy. I don’t need to worry about those things now.” Even while you are healthy, there is one document that everyone over the age of 18 should have in place: a Health Care Proxy (HCP). A health care proxy is necessary to ensure that someone, a health care agent, will be available to make medical decisions for you if you are unable to make them on your own because you are incapacitated. Currently, in Worcester County, another form is also worth considering: the Medical Orders for Life-Sustaining Treatment (MOLST) form. This medical order works with the HCP to inform your health care agent and your doctors what you actually want to happen in various circumstances.

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.

Massachusetts’ Seniors May Consider Filing Tax Returns for Circuit Breaker Credit Refunds

As we all know, tax season has been in full swing for many weeks now, and it is almost over for some. But, did you know that even if you did not have to file a tax return, as a senior, it may be beneficial for you to do so? Did you know there is a tax credit only available to seniors in Massachusetts who pay rent or real estate taxes? There is, and it is called the Circuit Breaker Tax Credit. Even if you don’t owe any taxes at all, you may be eligible for this credit, and it is just like money in your pocket (Certain counties in Massachusetts, including Worcester and Middlesex, have had tax deadlines extended to May 15th, because they have been declared Federal Disaster Areas due to the recent floodings).

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

When it Could be OK to Give Assets Away When Planning for Long Term Care (Nursing Home)

Not long ago, I posted a blog on gift transfers and their affect on qualification for MassHealth (Medicaid) for an institutionalized individual. Generally, transferring assets to dispose of property so that you qualify for MassHealth will not actually help you qualify because the state imposes a five-year “look-back” period, in which those assets are counted and used to assess eligibility for MassHealth. Fortunately, there are some exceptions to the general rule.

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.

Safe Driving Bill Approved by Massachusetts House of Representatives

On February 4, 2010, the House of Representatives in Massachusetts amended and approved a bill dealing with safe driving in the Commonwealth. If passed by the Massachusetts Senate, this bill will have a direct impact on the senior citizens of Massachusetts because it will require drivers over the age of 75 to renew their licenses every 5 years instead of every 10 years.

Issues concerning elderly driving have been in the news on and off for many years now, but after a series of accidents involving elder drivers last year, the state legislature is looking to make some changes. The current bill does not just involve seniors though. It also seeks to completely ban text messaging by all drivers, and it provides for higher penalties for drivers under the age of 18 who are caught using cell phones while driving.

For seniors, the requisite 5-year renewal will include passing a vision test that will be administered at the local branch of the registry of motor vehicles. However, the bill would permit the registrar to create regulations allowing seniors to submit a vision screening certificate, signed by an optometrist or ophthalmologist that asserts they meet the minimum vision requirements to hold a driver’s license.

This bill further seeks to allow health care providers to notify the registry of anyone over the age of 16 whose cognitive or functional impairments make it unsafe for them to drive. Decisions regarding whether to revoke a license will depend more on the effects of the cognitive or functional impairment, rather than simply on the diagnosis of such impairment. More detailed regulations will be drafted by the registry with the assistance of various health care professionals, and any reports filed under this section of the proposed law would remain confidential.

Finally, this bill seeks to codify a rule that drivers of any passenger vehicle shall not use mobile telephones, hands-free mobile telephones, or any other mobile electronic devices while driving on duty.This section was drafted in response to the rising number of accidents involving the T in recent years where drivers were text messaging, or using mobile electronic devices in other ways.

Now that the House has published and amended the safe driving bill, it moves on to the Senate Committee on Ways and Means. State Senator Stephen M. Brewer, is one member of the Ways and Means Committee, and he represents parts of Worcester, Hampden, Hampshire, and Franklin. If you are interested in voicing your opinion on this bill, call Mr. Brewer at (617) 722-1540, or email him at Stephen.Brewer@state.ma.us.Click here for the full text of the current bill.

Astor Matter Reminds Us that Trustworthiness is Essential When Nominating Substitute Decision Makers

Lately, the matter of Brooke Astor’s estate has been covered in the media. Like many people she had an estate plan in place which included a Durable Power of Attorney and Health Care Proxy, which nominated subsituted decision makers in the event she would lose the capacity to make important financial and/or medical decisions at some point during her elder years. She did not want to burden her family with obtaining a Guardianship and/or Conservatorship through the courts. She did end up suffering from Alzheimer’s disease and her son took over her financial powers. He just didn’t do a very good job…

The following is an exerpt from this week’s AZCentral.

Anyone who has signed a financial document has to be squirming a bit over Brooke Astor’s estate case.

Her son, Anthony Marshall, recently was convicted of stealing millions of dollars from Astor while she suffered from Alzheimer’s disease before her death. Although the case largely centered on a contested will purportedly signed by Astor, other estate-planning issues also came into play.

One was a financial power of attorney signed by Astor that gave Marshall authority to direct her affairs if she became incapacitated – and the means to steal from her.

The episode provides a wake-up call for people who use financial powers of attorney. These legal documents can be highly effective in ensuring that someone else will be around to handle financial matters for you if you’re alive but unable to do so – as in the case of mental incapacity.

A power of attorney can be as short as a page or much longer, depending on the detail desired. They’re often included with a trust, will, health power of attorney (addressing medical issues) and other estate-planning documents.

For all the benefits of using a power of attorney to avoid a potential court-supervised conservator situation, there are pitfalls, too.

In particular, you need to trust the person whom you designate to act on your behalf. And you should make sure he or she is responsible, diligent and reasonably astute.

“They really are documents that people should pay attention to,” said Denise McClain, a financial principal and attorney at wealth-management firm Lowry Hill in Scottsdale. “You’re potentially passing along a lot of power.”

Elder Mediation: A Great Option to Diffuse Family Tensions When Planning for Elder Care

Can’t we all just get along?  

I see it more and more and it really saddens me: families unable to “get along” when it comes to decision making for elder loved ones. It can be as simple as whether Mom and/or Dad need to meet with an Elder Law Attorney, to concerns over finances and inheritance issues, to whether siblings agree on who should serve as primary caregiver, and/or to whether assisted living/nursing home care is necessary.

Often as family members age, family dynamics can become more complicated. Conflicts that have simmered below the surface can boil up and make conversation impossible. Sometimes the elders are involved in the discussions, but unfortuntately sometime they are too far gone to meaninfully participate.

Either way, even the most harmonized family can sometimes hit a bad note or two and require some assistance.

(Dun, dun, dun, dun!) Enter the Elder Mediator. Mediation provides an opportunity for the Elder and all concerned members of the family to participate in creating a thoughtful plan for future. In most cases Elder Law Attorneys can act as Elder Mediators with certain issues. However the scope of the disagreements can often rest in other issues that are not related to the elder law topic. An Elder Mediator, working closely with your Elder Law Attorney, is trained to assist families in identifying the real issues, separating them from the crucial issues of planning for elder care, and developing the best plan of care.

National Public Radio has recognized the usefulness of elder mediation for families dealing with aging issues.

As baby boomers age and options for their care increase, we will all face many difficult choices concerning how we handle transitions during our elders’ declining years. Families will have to be able to evaluate resources, options and develop flexible strategies to support their elders. Even when not legally competent to make decisions, it is important to include an elder’s wishes and expressed preferences when putting a plan into place. Elder mediation is a rational first step for families to help them address their changing needs while enhancing problem solving/communications skills and avoiding messy litigation.

States Moving to Expand Long-Term Care Insurance

Have you ever considered purchasing Long-Term Care Insurance (LTCI) but were unsure because of the seemingly high cost? Have you ever decided that you were willing to fund a LTCI policy just to find out that you were no long eligible? Several States across the nation have been working on expanding LTCI in their jurisdictions to increase coverage and make it more affordable and accessible. Hopefully Massachusetts will follow shortly.

Check out this article where Kaiser Health News reports on States Moving to Expand Long-Term Care Insurance.