Family & Elder Law

A.        Massachusetts law lets you nominate some one to communicate your medical treatment desires to your doctor if you can’t do so yourself; this person is called a “proxy” or an “agent”.  Anyone (other than your health care provider) can be your proxy, and you can revoke the appointment at any time.

B.         Why name a Proxy?  Some doctors refuse to follow the verbal instructions of family members when a patient cannot express his or her desires and wishes.  A proxy can eliminate prolonged physical and emotional distress for you and your family.

C.        Forms.  Hospitals and nursing homes must inform you of your right to execute a Health Care Proxy and must have forms available for your use.  These pre-printed forms are usually one-paragraph documents that don’t adequately anticipate all possible circumstances.

D.        Enforcement.  Before the proxy can act, your attending physician must declare in writing that you cannot communicate willing and knowing health care decisions, either physically or verbally.  Your agent can go to Court to force doctors to obey your instructions.

Read also: Instructions for Safe Keeping a Healthcare Proxy.

A.        What is it?  A written power of attorney appoints a third-party to manage all or a specified part of  your business and financial affairs in the event of your permanent or temporary disability.

B.         What a Power of Attorney can do.  A power of attorney ensures that your property will be protected, that your bills will be paid, checks deposited, and all of your affairs will continue, despite your inability to act.  There is no direct court oversight of attorneys-in-fact.

C.        Important Powers.  One common and effective use of a power of attorney is to sign nursing home admission contracts without making the attorney-in-fact personally liable for your bills.  Powers of attorney can also be used advantageously to reduce a taxable estate if death appears imminent.

A.        Under certain circumstances, interested parties can file a petition with a local Probate Court to have a guardian appointed to handle an incompetent person’s affairs.  A guardian has custody only of the body, but not the property, of the incompetent person.

B.         An investigation team is often appointed by the Court to find out if the guardian is fit to serve and if the incompetent person needs help, and can include:

1.         a doctor (a psychiatrist or the family doctor)

2.         a lawyer (as guardian-ad-litem), and

3.         an attorney to protect the incompetent person’s rights.

The investigators report back to a Judge, who holds a hearing at Court (or at bed-side) and appoints the guardian.  Family members are notified of the proceedings from the very beginning and have a right to file objections and have in-put.

 A.        A conservator is much like a guardian, and the proceedings in Court are similar.  The main difference is that a conservator has control over the incompetent person’s property, but not over his or her body.  Like a guardian, a conservator is held to the highest standards of accountability when managing an estate.

B.         Conservatorship proceedings are overseen by the Probate Court and are as costly and time-consuming as guardianship proceedings.  The conservator must stay in touch with the Court and the incompetent person’s family and must file an account each year.

A.        A Last Will and Testament can be one of the most important documents you will ever sign.  Knowing that your estate will pass to your family in an orderly fashion brings peace of mind to you and your loved ones.  It’s a relatively inexpensive process and a good opportunity to put your business and personal affairs in order.

B.         An estate plan involves more than signing a Last Will; it deals with life insurance, joint properties, business interests and a review of survivors’ needs and income.  A thorough estate plan should also address long-term care concerns, powers of attorney, and various tax and probate issues.

C.        Trusts can be an integral part of any estate plan, regardless of size.  Trusts come in all different forms, depending on the purpose to be served.  It is essential to consult an experienced probate lawyer to review your needs and objectives.

A.        What is Medicaid?  Also known as “MassHealth”, it is a joint federal/state welfare program that covers nursing home expenses, drugs, doctors, therapy and medical equipment for qualified residents.  In Massachusetts, it is administered by the Long Term Care Unit of the Division of Transitional Assistance.

B.         Why Medicaid?  Because Medicare doesn’t cover nursing home costs, and because most families can’t afford these high costs or obtain long-term custodial care insurance.  The average monthly local nursing home cost is approximately $12,000.00 for room and board, drugs, doctors, therapy, equipment, tissues, diapers, etc.

C.        Criteria.  Qualifying for Medicaid can be a complicated procedure.  In general, eligibility is established under the following guidelines:

1.         must be over 65 and “medically needy”;

2.         must be a Massachusetts resident and a U.S. citizen;

3.         must have modest monthly income;

4.         must have less than $2,000.00 in assets, although many assets are not counted (including house and auto); and

5.         the applicant’s spouse can keep significant assets, and have unlimited income.

D.        How to Plan.  Long-term care planning is designed to immediately qualify someone for Medicaid coverage, while preserving the family’s assets and income.  In addition, a good plan avoids Medicaid post-mortem recovery, since Medicaid is allowed to reimburse itself out of your estate assets.

A.        What is a homestead?  Every person can protect up to $500,000.00 of the value of his or her home by filing a Declaration of Homestead at the local Registry of Deeds.  Your home cannot be taken or sold for most debts incurred.

B.         Even after your death, the Homestead continues to protect the equity in your home for the benefit of your surviving spouse.

A.        Life Insurance is often useful to protect heirs or to pay estate taxes and costs.  Policies come in many forms, each with different benefits.  You should purchase a policy as part of an overall estate plan and not just to leave money behind after death; there should be a purpose to your premium payments.

B.         Health Insurance.  Anyone who has Medicare Part A or Part B can obtain Medigap policies; costs for these policies are low, and they cover more items than Medicaid does (i.e. drug costs reduced, eyeglasses).  Supplemental health policies often only cover deductibles and co-insurance amounts not covered by Medicare.  Some offer more coverage but at a higher premium cost.  Drugs and nursing home costs are not covered by Medicare (only 100 days of “skilled” nursing home care is partially covered, but 85% of nursing home residents do not receive “skilled” care).

C.        Hazard Coverage.  You must maintain adequate casualty and liability insurance coverage in place on your automobile and your home (or on your furnishings if you’re a tenant or condominium unit owner).

D.        Long-Term Care Insurance.  Massachusetts regulates these products diligently, but you must still be careful to purchase the right policy for your situation.  The following clauses should be reviewed:

1. Solid company – A.M. Best rating of A+ and AAA rating by either Moodys or Standard & Poors
2. Non-cancelable
3. Short pre-existing condition clause (no more than 6 months)
4. No requirement for prior hospitalization before coverage
5. Cost-of-living increase rider
6. Coverage for “cognitive deficiencies” such as Alzheimer’s disease, memory loss, etc.
7. Waiver of premium
8. Elimination period of no more than 90 days
9. 2-years home coverage/3-years nursing home coverage.