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.

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.

After attempting to cope with his mother’s diagnosis of dementia for several months, Joe has finally decided to research local nursing homes for his mother. However, he is concerned about the cost while protecting his mother’s multiple properties, which have been in the family for generations. During a vist, Lindsay, a social worker from the facility, reached out to Joe, offering to complete a MassHealth application for his mother at no-cost. While Joe likes the concept of this free service, he can’t help but wonder if there is a catch involved.

Employed by the nursing home, social workers and other nursing home advocates focus on the rights of the nursing home and not the resident. The nursing home has a vested interest in keeping someone on “private-pay” for as long as possible because their private pay-rates are much higher than the amount received in MassHealth/Medicaid reimbursement. This means more out-of-pocket costs for residents than may be necessary.

Further, even if nursing home advocates do have the best of intentions, the MassHealth/Medicaid process is riddled with complex rules and regulations that are difficult to navigate for those not educated in the eligibility requirements and advantageous planning opportunities available under MassHealth/Medicaid. For instance, an individual encouraged to apply too soon might be ineligible for an extended time period and have to pay privately for a longer duration. Alternatively, the “advocate” may not inform the family that they can pre-pay for funeral expenses as part of a spend down, thereby reducing the burden on family members when the applicant passes.

Individuals that enlist family members to fill out their MassHealth applications or file themselves may face similar problems. Unfamiliar with eligibility requirements and liable to miss prime planning opportunities, these individuals are likely to encounter harsh penalties or confusion when faced with the application process, as well as income and asset verifications. Once they receive their denial notice in the mail, it will be much more expensive to get an Elder Law attorney involved at that point. Additionally there are strict time periods that must be adhered to in order to have any change at being sucessful in a MassHealth/Medicaid appeal.

Nursing home advocates and family members, although the cheapest solution up front, do not have the requisite knowledge, skills, or ability to compose trusts, devise appropriate estate plans, and represent you in an appeal setting if the need should arise. Rectifying the mistakes of an advocate or self-handled application may be more costly than a properly executed plan formulated a skilled elder law attorney. By hiring an elder law attorney to guide the MassHealth application process, you will ensure that your savings, your spousal support, and your family’s inheritance will not be jeopardized by lost opportunities in a last minute planning strategy.

Hiring a lawyer to handle your MassHealth application is a necessary investment. Elder law attorneys can save clients and their family members an amount greater than the cost of their legal services. If you are interested in learning more about the MassHealth application process or long-term care planning, contact Vickstrom Law today!

Most everyone would say that they want to be independent and remain in their own homes as long as possible. This sense of autonomy can be kept in place longer than ever before due to medical advances, assistive devices, and in-home care provided by family members and private caretakers. However, what happens when an elder can no longer remain safely in their home and an adult child is trying to get them the help they need?

Esther is 89 years old. She has lived alone since the death of her husband 23 years ago. She gave up driving two years ago, but is regularly visited by her children and grandchildren, who take care of errands or drive her to handle things herself. Lately, she has been rather unsteady on her feet. Additionally, she has been very forgetful and once left the stove on all night. She is also having trouble remembering to take her medications. There were so many her daughter, Susan, sorts them every week into a pill box. Esther still forgets to take them and sometimes actually doubles up on doses. Susan can see its time for more help but Esther is adamant about not having strangers in the house and doesn’t want to end up in “one of those places…”

Many times, elders resent their adult children trying to help them.  In the elderly parents mind, they are still independent and completely able to handle their own affairs.  In the above example, Esther does not appreciate her daughter’s suggestion that they bring in some private home care, or that her mother visit an assisted living facility or rest home. She feels her children are being too pushy, and trying to take control.

But on the other side, Susan feels that Esther isn’t thinking clearly anymore. She is extremely hurt by her mother’s attitude and reaction. After all, Susan is just trying to help. 

The parent/child roles have been reversed, except unlike with young children, the adult child does not have the automatic right to make decisions for the elderly parent. Unless the child seeks to declare the parent incapacitated through a court ordered Guardianship or Conservatorship, or has the parent’s Health Care Proxy and/or Durable Power of Attorney activated, the child has to realize that in the eyes of the law, the parent may make their own decisions. And, unfortunately, people are allowed to make bad decisions.  However, it is important that the adult child watch the situation carefully and not get frustrated and leave the parent to their own devices.  Assisting does not mean taking over against their parent’s will. 

Too many children have simply given up when their “help” is not accepted. If one finds themselves in that situation, they can contact our office for assistance and suggestions for getting through to the parent, discussing the possible need for Guardianship, ensuring that the elder’s estate planning documents are in order, scheduling a medical evaluation, and/or perhaps referral to a geriatric care manager where appropriate.

The elderly years can be as challenging as the terrible twos, terrible terrible teens, and even the terrible twenties.  Elderly parents must be respected by the adult child who is trying to help, even if the parent/child roles have truly been reversed.

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.

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.

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

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.