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 Dear
Attorney Flynn:
My husband and I attended a
presentation many months ago, where you explained why it is
so important for seniors to get a legal check up. The
complicated issues that caused us to avoid this task for so
long were the same issues we confronted head on during our
legal check up. It was not nearly as difficult as we
expected, and we are so relieved now that every thing is in
order. We can’t thank you enough!
John and Patsy, Scituate
Dear John and Patsy:
Thank you for your kind words and for taking the time to
share your experience with others! Your comments are
important because many seniors express the same
procrastination in making the call and, more importantly,
the same peace of mind they experience afterwards. While
this column usually responds to questions from the
community, your comments have inspired me to again highlight
why it is so important for seniors to get a Legal Check Up.
The Legal Check Up involves a discussion of the clients’
goals, a review of their family history, medical history,
and financial information (including income, assets,
liabilities, and past gifts), and a review of any estate
planning documents already in place. This comprehensive
approach allows us to determine if there are issues that
need to be addressed in order to achieve the clients’ goals.
Some of the most common issues that arise during a legal
check up include:
• The clients have “Sweetheart Wills,” in which each leaves
the entire estate to his or her beloved spouse. I do not
recommend Sweetheart Wills for seniors because they leave
their estate vulnerable to the cost of long-term care. By
revising the Wills in compliance with the MassHealth
regulations, we are able to protect their estate from the
cost of nursing home care in certain situations.
• The clients have a disabled child and their Wills leave
their estate equally to all of their children. This
inheritance could result in a loss of public benefits for
the disabled child, however, which can be avoided by
creating a Special Needs Trust for that child’s benefit and
leaving his share of the estate to the Trust.
• The clients have Durable Powers of Attorney (DPOA) that
were executed many years ago or were not done by an Elder
Law Attorney. If a DPOA is only a few pages long, it
probably does not include many of the specific powers that
are frequently required for elder law purposes. In addition,
banks and other third parties are often reluctant to accept
a DPOA that is several years old.
• The clients have executed the standard Health Care Proxy
forms that are available at hospitals and doctor’s offices,
which are fine for most purposes. If there is a need
for the agent to access the elders’ medical records or
communicate with their doctors before they are deemed
incompetent, however, the standard Health Care Proxy does
not provide that authority. The HCP is a “springing” power,
which means the agent’s authority “springs” into effect only
after a doctor deems the principal to be incompetent. We
address this issue by including language that grants the
agent immediate authority as personal representative for
purposes of HIPAA (the health privacy law).
• Clients have often selected inappropriate agents to serve
under their DPOA and HCP -- either their “oldest” child
solely because he is the “oldest” child, or all of their
children because they do not want to hurt any child’s
feelings. During our discussion we may discover that
the named agents have filed for bankruptcy, have drug,
alcohol or gambling problems, or do not get along with their
siblings. There is no room for emotions in these important
decisions, as the selection of one’s agents must be based
solely on their qualifications.
• The clients want to deed their home to their child, who
promises that they can live there forever. If the home is
put in the child’s name, however, it becomes available to
the child’s creditors and could be subject to division of
assets if the child gets divorced. By retaining a life
estate, the clients ensure their future security and the
children will benefit from an increase in the tax basis so
there will be no capital gains tax due on the death of the
parents.
• The clients have been making gifts of $12,000 per year to
each child as allowed under the gift-tax exemption.
They don’t realize that these gifts are not exempt under the
MassHealth regulations and could cause a disqualification of
long-term care benefits in the future.
While these are some of the more common issues, a
comprehensive legal check up will reveal any unresolved
issues that are specific to your situation. So don’t delay
any longer! You can get a listing of Elder Law
Attorneys in your area at the website of the National
Academy of Elder Law Attorneys at www.naela.com, or ask for
a referral at your local Council on Aging.
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