Elder Law

The loss of a loved one is always difficult, but that pain can be magnified when there is no proper estate planning in place.  The more complicated the family dynamics and the more specific the wishes of the loved one, the more important it is to make sure the proper estate planning is in place.  While you are enjoying the last month of summer and are sitting on the beach and thinking about the future, here are ten common estate planning mistakes to avoid.

1.  Not having a plan in place.
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Testamentary Capacity

by Samuel S. Reidy, Esq.

February 18, 2021

Unfortunately, it has become an all-too-common story.  A loved one is stricken with dementia and during the period he or she does not have possession of all of their facilities, an estate planning change is suddenly made.  Sometimes this new (and often unexpected) estate planning means the changing of beneficiaries in a Will, or a new Health Care Proxy or Durable Power of Attorney being named, or the transfer of real estate.
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One of the three most basic estate planning documents is the health care proxy.  This is the document where an individual gives permission to another person to make health care decisions on their behalf in the event they are incapacitated or unable to make health care decisions for themselves.  This document is especially important in Massachusetts because under Massachusetts law, there is no identified law that allows for the appointment of a default surrogate under any circumstances.  That means that your spouse, parents, and children have no legal right to make health care decisions for you.

Massachusetts is in the minority with regards to the treatment of health care proxies.
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Powers of the Personal Representative in Massachusetts

by Samuel S. Reidy, Esq.

August 21, 2020

One area of confusion in Massachusetts estate planning is regarding the powers and responsibilities of an the Personal Representative of an estate (formally referred to as an Executor or Executrix).  When an individual executes his or her Last Will and Testament they have to select a Personal Representative and (often) successor personal representatives.  This is often an area of confusion for the individual finalizing his or her Will.
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In order to qualify for Mass Health, individuals must have no more than $2,000 in assets.  Oftentimes this leads to people panicking and trying to spend or hide all of their money and assets.  Irrevocable trusts are a great tool to protect assets for Mass Health eligibility, however Mass Health has a very strict five year look back period, meaning any transfer of assets must have occurred more than five years prior to eligibility.  Unfortunately, many people do not plan far enough in advance (or there is an unexpected injury or illness at a young age) and the five year period is devastating on the healthy spouse's financial future.  There is a strategy that can avoid heartache in the future.
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When one thinks of medical malpractice, it is easy to just think about surgical errors or lawsuits involving unfortunate outcomes.  In June of 2018, Rhode Island Hospital entered into a consent agreement with the State Department of Health after reporting four patient errors in four consecutive weeks.  These preventable errors included  performing the wrong tests on the wrong patient and performing a spinal procedure on the wrong part of the spine.  These are the stereotypical types of claims that are associated with physicians being sued, but there are three  more common areas where physicians often find themselves embattled with litigation

1.  Failure to obtain informed consent.
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Massachusetts is a an at-will employment state, meaning that employees can typically be fired at any time for any reason.  However, there are several important exceptions to this general rule which are important for employees who have been let go (or are in fear of being terminated from their employment) to know about.

First, there are certain protected activities under the Common Law that an employee cannot be fired because he or she engaged in said activity.  These activities including: (1) asserting a legal right (such as taking vacation time or filing a workers' compensation action), (2) fulfilling a legal duty (such as attending jury duty), (3) reporting criminal wrongdoing, (4) refusing to commit illegal acts (such as embezzling or committing perjury), and (5) cooperating in a criminal investigation of the employer or the employee's superiors.  Generally speaking, if an employee is engaged in these protected activities the employer cannot terminate him or her for doing so.
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One question that comes up a lot when talking with clients about estate planning is "what is a Living Will and do I need one?"  The answer depends on what state you live in.

First, it is important to understand exactly what a Living Will is.  A Living Will has nothing to do with your Last Will and Testament.  A Living Will is a legal document that allows a person to list medical treatments that they would or would not want if they become terimnally ill are become unable to make their own health care decisions.  It is a type of Advance Directive, that is recognized in most states.
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Probably the most common legal request I get is to draft a will for a client.  Inevitably the client has one major question: how often do I need to update or change the will?  Truth be told, there is no hard and fast rule about how often you should update or change your will, but there are some important guidelines to follow.

First, you should review your will (and all of your estate planning documents, including your health care proxy and durable power of attorney) immediately after a major life event.  These life events include (1) the death of an immediate family member; (2) a chance in marital status (marriage, divorce, annulment, passing of your spouse); (3) an addition to your family (birth of a child or grandchild, adoption, new marriage, stepchildren, etc.); (4) a loved one has become ill, incapacitated, or dependent on you; (5) there has been a substantial change in the value of your assets (new house, boat, job, etc.

One of the biggest questions clients face when considering utilizing Trusts for their various assets is whether to use a Revocable or Irrevocable Trust.  It is a complicated question with no easy answer that will apply to every single client.  Some clients will prefer the added protection of the Irrevocable Trust while others like the flexibility that is allowed by a Revocable Trust.

In recent months, the Massachusetts Supreme Judicial Court made a ruling on two important cases involving MassHealth (the state agency which administers benefits in Massachusetts) and Irrevocable Trusts. 

For many years, MassHealth would fight against the long-held notion that a home that was held in an Irrevocable Trust could not be held as a countable asset.
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We've all seen the advertisements or received the e-mails saying that estate planning is easy and can be done hassle free online.  In fact, I recently received an e-mail from Groupon offering a significantly discounted will package including a last will and testament, healthcare proxy, and durable power of attorney at a significantly reduced cost.  While the cost reduction sounds great, the laws in Massachusetts and Rhode Island do not care if you did your estate planning yourself or if you hired the best lawyer in the country to do so.  At the end of the day, your estate planning has to conform to your state's unique and non-waivable rules of law.