Worcester & Middlesex County Estate Planning & Elder Law

Do I Have All The Right Estate Planning Documents?

A power of attorney is a vital document for every adult. This document allows you to appoint another person as your "attorney-in-fact," which gives that person the authority to act on your behalf in legal matters, should you not have the capacity to do so. A power of attorney can be drafted in several forms.

If you're in a tragic accident that leaves you in a coma, financial decisions will need to be made. If you don’t plan ahead, a family member will have to hire an attorney and ask a judge to grant a power of attorney (POA) that will permit her to act on your behalf. That could be an expensive, time-consuming task.

AL.com’s recent article, "If You Don’t Have This, You Need It," says that a better solution is to be proactive and have your attorney create a power of attorney before you need one.

Let’s look at the different types of POAs:

• Springing Power of Attorney: This only becomes effective under certain conditions, typically incapacity. A big disadvantage of this POA is that when someone tries to use it on your behalf, they may be required to "prove" you are actually incompetent, creating inconvenience and delays.
  
  
• General Power of Attorney: This document is one in which you give your attorney-in-fact the authority to act on your behalf at any time. However, if you become incapacitated, this document is null and void.
  
  
• General and Durable Power of Attorney: This document lets your attorney-in-fact continue acting on your behalf if you become incapacitated.
  
  
• Limited Power of Attorney: Here, you appoint someone to act on your behalf only under certain conditions, such as when you’re out of the country.

Consider your own situation: Which power of attorney is most appropriate for you? An experienced estate planning attorney will make this decision more accurate and easier. You will then decide whom you’d appoint as your attorney-in-fact. If you’re married, a natural choice is your spouse. However, you should also have at least one successor attorney-in-fact.

Consult with an estate planning attorney to be sure the document conforms to state law. Your counselor can help you decide which power of attorney type is best for your situation.

Meanwhile, an advance directive for healthcare describes your wishes on end-of-life care. These documents aren’t legally binding agreements, but it’s seldom their instructions aren’t followed and accepted by healthcare professionals. Talk to an attorney, because they do vary by state.

They’re typically divided into two parts:

• Living Will: You'll give detailed instructions on the level of care should you become incompetent and facing a potential end-of-life situation. This should talk about whether you’d want to stay on life support, remain on a feeding tube, or if you’d want hydration or pain medicines administered or withheld should you ever be in a vegetative state. It’s far better for you to make these calls instead of leaving it to a physician or family member.
  
  
• Healthcare Proxy: With this document, you appoint the individual you'd want to speak on your behalf concerning healthcare decisions. As an alternative, you can state you’re requesting your living will instructions be strictly followed, and you explicitly indicate you don’t want someone to speak on your behalf.

Reference: AL.com (October 26, 2018) "If You Don’t Have This, You Need It"

Get your own documents in order. We can help. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

What Really Happens After You Die?

What happens after you leave this world and pass on into the next one, whatever that may be? That depends on you! 

You should care about this, Forbes says, in its recent article, "What Will Really Happen After You Depart?"

No, not just because it’s the right thing to do and not just because you’re curious. It’s because you want your family to remember you for the awesome legacy you plan on leaving, not because of the horrible hot mess you left behind that they spent three years trying to figure out while trying to live their lives.

Estate organization is not the exact same thing as estate planning. An experienced estate attorney or elder law attorney can help you draft your will, your advance directive, your power(s) of attorney, and a trust, if you need it. Your attorney most likely also has a copy of those documents.

However, the attorney has no power over what you do with your original estate planning documents once you leave their office.

One idea is to develop a guidebook or “game plan” for your family and loved ones, while you’re alive. It’s known that there’s a strong correlation between how we face death and prepare our families—and their ability to survive, adjust, and start the recovery process.

Organizing your estate has been called a “gift of love” that goes far beyond when you can be around to take care of your family. Answer these questions to start the estate organizing process:

• Does a family member know where to find your advance directive if you end up in the hospital?
• Where are your legal documents, and who in your family knows where to find them?
• Who has access to your bank accounts and knows your login data?
• Are you now caring for someone? Who’d assume that responsibility if you’re unable to do so?
• Have you made final arrangements for your death, funeral, and burial or cremation?
• Who knows about the plans and where the paperwork is located?
• Where are your insurance documents, and who knows where to find them?
• Who’ll take care of your pets when you are no longer able?

Lastly, keep in mind that creating the plans and organizing documents is only half of the task. You also need to communicate. The more you’re able to communicate your wishes and what you have organized to your family, the more love you’re showing them while you’re around to enjoy each other. They will also be better prepared to grieve in a good way, embrace your memory and move on with their lives.

Reference: Forbes (September 13, 2018) "What Will Really Happen After You Depart?"

We can help. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Do You Have a Will Yet?

Of course you know you should have a will. Then why do so many people procrastinate on getting one?

There’s news of a celebrity dying without a will nearly every month.

Merrill Lynch and the consulting firm Age Wave found from their recent survey that about 50 percent of study participants age 50 and older didn’t have a will.

The Minneapolis Star Tribune’s recent article, "How to get started on making a will," reported that many people don’t care to talk with close family members about important financial topics, like their level of financial security, plans for living arrangements in retirement, inheritance, or long-term care.

The Merrill Lynch/Age Wave report, “Family & Retirement: The Elephant in the Room,” explains some of this is due to time constraints and that people say they’ll do it eventually.

However, it’s easy to get started. You can draft an ethical will, also known as a values statement or letter. Do this in the next few weeks or month. The thought is to capture for your immediate family, as well as your grandchildren and great grandchildren, what you want them to know about your values, what mattered to you in life, what traditions you hold dear, and how you’d like the world to become a better place.

Creating an ethical will begins with a family conversation. Once you begin recording your values and discussing them with your family, it’s a short hop to discussions about your estate plan.

A great benefit of starting the dialog with an ethical will is that there’s less pressure on the family and more time to become comfortable with the topic.

These discussions will lead you to finally meet with an estate planning lawyer to write your will.

In addition to creating your estate plan, you’ll want to arrange your finances so you can age comfortably, draft a durable power of attorney in case you become incapacitated, and write an advanced health directive.

These details will come out of those initial discussions about values, and not the other way around.

Reference: Minneapolis Star Tribune (September 8, 2018) "How to get started on making a will"

Need help getting started? Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Do You Have a Ticking Time Bomb in Your Estate Plan?

There’s a time bomb ticking in many estate plans.

Forbes’ recent article, "Defusing The Time Bombs In Your Estate Plan," explains that the “bomb” that may be ticking and ready to explode is the person, or people, you name to act for you.

Whether they act during your lifetime or after you pass away, these individuals frequently can make or break your estate plan. They have the ability to determine the fates of family relationships and financial security. However, most people don’t realize the potential consequences of their surrogates’ actions. As a result, they don’t give sufficient thought to whom they appoint to these important roles.

Let’s examine some of the major potential surrogates:

• Agent: This is the person who acts for you under a power of attorney or advance medical directive.
  
  
• Trustee: If you create a trust, you’ll create some limits in the trust agreement, and the trustee has the authority to make the final decisions about managing the investments, making distributions, paying taxes, and other aspects of managing the trust.
  
  
• Executor: This person manages and distributes your estate after you pass away. Also known as a personal representative, the executor is charged with carrying out the wishes expressed in your will and other estate planning documents.
  
  
• Social Security representative payee: Social Security will appoint someone to manage the benefits of someone unable to do so; usually, it’s a family member or friend. The beneficiary can contact Social Security and ask that a particular individual be appointed, and they will consider the request.
  
  
• Long-term-care insurance lapse designee: Most insurers now allow the insured to choose an individual who’ll get a notice if the LTC premiums aren’t paid. You also can name an alternate payee who’ll receive and manage benefit payments, when you can’t.
  
  
• Agent for funeral decisions: States have varying regulations about who can make funeral decisions, and some have laws recognizing the appointment of an agent.
  
  
• Financial account designees: When opening a financial account, some people like to select the transfer on death (TOD) option, or they open joint accounts with a relative or friend. This allows someone else to manage the account when he or she isn’t able and who will inherit it without going through probate.

One issue with many of these surrogate designations is that different people frequently are named for tasks and responsibilities that overlap. Another issue is that people often are appointed without being asked or even told until they have to act. Finally, the person named to handle these responsibilities must be qualified.

Reference: Forbes (July 23, 2018) "Defusing The Time Bombs In Your Estate Plan"

Speak with your estate planning attorney to be sure you have consistency and avoid conflicts between the different surrogates. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

What Are the Financial Advantages and Disadvantages for Same-Sex Marriage?

Financial implications are likely not at the top of the list for same-sex couples deciding to declare their devotion in matrimony, but there are several to consider.

The U.S. Supreme Court ruled same-sex couples nationwide could legally wed in June 2015, and these couples have been getting hitched ever since. A recent WTOP article, "Gay and Getting Married? Financial Advantages and Disadvantages," reports that a 2017 Gallup poll found 10.2 percent of same-sex couples in the U.S. are now legally married.

Financial implications are probably not at the top of the list for same-sex couples deciding to marry. However, there are several to consider. Some may not be beneficial, but some are. The most significant issues for married same-sex couples, like married straight couples, should be retirement planning, estate planning, and tax planning.

The major benefit for same-sex couples marrying is the survivor’s Social Security benefits. If you’re lucky enough to have a retirement plan where there is a pension benefit, it can be transferred from spouse to spouse. The other big issue is gifting: Spouses can leave an unlimited amount of money between spouses. But if you’re not married, that doesn’t happen.

A major difference in what each partner makes can gum up the works, especially with the IRS. Consider the marriage penalty tax, and figure out if you’re better off being married or not being married. You could be subject to not getting some of the tax exclusions that would’ve worked to your advantage if you weren’t married. This is especially true if there is a wide variance in income between both partners. You should also think about loss-limit deductions on things such as investment property, IRA and retirement account deductions, and other tax planning situations that can become significant considerations, when one partner earns much more than the other.

When combining the income of the two spouses, it may put them both into a higher tax bracket. This will add more tax liabilities. You should also think about homeownership and retirement. For unmarried same-sex couples with a big variance in incomes who own their home as joint tenants with right of survivorship, the surviving individual will get the house when the first one passes away.  However, there could be some gift consequences, depending on how the money went into paying for the house and who put more money into it versus who didn’t.

There are also retirement accounts to look at. Married couples can pass IRAs or 401(k)s to one another at death, without triggering taxes. If you die with money in your retirement accounts, the IRS starts taxing that money as soon as your beneficiaries withdraw the money.  It also forces a withdrawal within a certain amount of time. However, there’s an exception for distributions to spouses, allowing the money to keep growing tax deferred.

You should also analyze healthcare. Many businesses offer healthcare coverage to their employees’ domestic partners. Depending on company policy for family coverage, legal marriage ensures it. There’s also a financial benefit for surviving spouses in a health saving account because that money can be transferred to the surviving spouse. Likewise, a married couple in a joint health savings account can contribute more pretax dollars.

All married couples also legally speak for each other in terms of medical decisions. Unmarried couples, either straight or same-sex, don’t automatically have that legal representation. For same-sex couples who opt not to marry, that can be solved with a medical power of attorney, an advanced medical directive, or healthcare proxy. These legally binding documents should be drafted, certified, and available in the event of an emergency. A power of attorney can cover both healthcare and financial decisions if one unmarried partner becomes incapacitated.

Reference: WTOP (May 30, 2018) "Gay and Getting Married? Financial Advantages and Disadvantages"

One size most definitely doesn’t fit all same-sex couples when it comes to the financial implications of marriage. The best advice for same-sex couples planning to wed is to get professional advice. Talking to a qualified estate planning attorney isn’t costly, and understanding what to expect before saying “I do” can eliminate some surprises. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

From all of us at the Law Office of Michael D. DellaMonaca, we wish you a happy Independence Day. We'll be back in the office on Thursday, July 5.

The Basics of Writing a Will

No one likes to think about end-of-life issues. However, it's important for every adult to have a will, no matter their age.

As most of us know, drafting a last will and testament is the first step in estate planning, which is the term for how you want your assets to be distributed after you pass away.

If you don't have a will (intestacy), your estate will go into probate, and the probate judge will determine who gets your assets and even your personal items. If you have minor children and no will, a judge will also be involved in deciding who raises your children.

Health Day’s recent article, "Wills & Living Wills," provides some general rules for writing a will:

• In most states, you must be 18 years of age or older.
• The testator (author) of the will must be of sound mind for the will to be valid.
• The document must clearly state that it’s your will.
• You must name an executor -- that’s the individual who will see that your estate is distributed according to your wishes.
• You must sign the will in the presence of at least two witnesses.
• In many instances, notarizing or recording your will is not required. However, it can protect against any claims that it's invalid.

Every state has its own set of rules. Not following those rules can create major costs, stress, and even lead to loss of assets for your heirs. Speak with an experienced estate planning attorney to create a will. This is especially important when it comes to blended families. Working with a qualified estate planning lawyer will give you more peace of mind, especially if you have children and must name guardians to rear them.

You and your spouse should have separate wills.

You should also review your will regularly and consider making changes if:

• The value of your assets changes.
• You marry, divorce, remarry, or expand your family with another child.
• You move to a different state.
• Your executor passes away or becomes incapacitated, or your relationship changes.
• One of your heirs or a loved one dies.
• The probate and tax laws affecting your estate change.

It’s also important to draft an advance directive. This includes a living will with directions on what medical care you do or don't want, if you're unable to speak.

Reference: Health Day (March 21, 2018) "Wills & Living Wills"

Make sure your estate planning documents say what you want them to. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.

Do I Need a Living Will, Power of Attorney, or Both?

What do living wills and lasting powers of attorney have in common? What are their differences? Many people do not understand these documents, and it is clear why!

A living will (often called an advance decision or an advance directive) is a record of your choices on your health and care needs, if you were to lose your mental capacity. Wealth Advisor’s recent article simply asks, "Living Will or Lasting Power of Attorney?" The article explains that a lasting power of attorney (LPA) is a delegation to give other individuals the power to make health and care decisions on your behalf, in the event that you were to lose mental capacity. You can have both a living will and a lasting power of attorney.  However, the order in which the documents are signed impacts their validity.

It is important that you speak with your estate planning attorney about your objectives for these documents, the amount of discretion you want your family and medical professionals to have, as well as the implications of creating both documents.

A living will can give you some peace of mind about your health and care needs. It can be especially important if you hold strong views about a health situation or if you have a life-limiting illness and want to be certain that your wishes are met. You can also state your views on life-sustaining treatment.

If I have a living will, why do I need a lasting power of attorney? A living will can only record your wishes as to medical treatment.  However, a power of attorney records your wishes about medical treatment, as well as your thoughts on other matters, like where you live and other general needs. Remember, however, that the lasting power of attorney appoints your agent to make these decisions for you.

If your views about life-sustaining treatment change and/or there are material developments in healthcare opportunities, your valid living will is going to be executed. This is despite the fact that your views later change, if you didn’t change the document.

With a lasting power of attorney, you can state your preferences to your agent. If your views change over time, your agent will be able to decide if your wishes were based on past instructions or more recent developments.

You also should think about who has control. With a power of attorney, your designated agent can make decisions about life-sustaining treatment, not you. With a living will, you’re still in control because you’ve stated your thoughts and direction about your treatment and end-of-life care.

Reference: Wealth Advisor (September 21, 2017) "Living Will or Lasting Power of Attorney?"

Need help sorting it all out? Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com. 

Do Some Simple Planning with College-Bound Children

It’s the big day. You’ve taught your child everything he knows, from how to tie a knot to how to knot a tie.

Your kid’s now an adult, ready to head to college and start a new adventure. But businessinsavannah.com’s article, "College-bound children need critical financial, health documents," asks, “What if you find out that one of those adventures results in a stay in the hospital?”

Legally, you’re not allowed to help him. Why not?

Many state privacy laws don’t let parents make healthcare or financial decisions for their adult children. It doesn’t matter if you’re paying their college tuition and health insurance: Your hands are legally tied. To solve this issue, you can have legal documents prepared that will allow you to continue in your guardianship role.

Two important documents are an advance directive for healthcare and a durable power of attorney to assign you or another trusted adult as your child’s representative. Without these, your child could be incapacitated and alone in a hospital or financially stranded somewhere. You could be required to petition a judge to let you help your child.

Two other forms that can help with your child’s care are a Health Insurance Portability and Accountability Act (HIPAA) form and an In Case of Emergency (ICE) card. The pre-signed HIPAA form lets you immediately access your child’s medical records, and an ICE card that can fit in a wallet will have all of his or her approved emergency contacts, health insurance info, and known allergies.

Reference: businessinsavannah.com (July 22, 2016) "College-bound children need critical financial, health documents"

You’ll sleep better knowing that in case of an emergency, you’ll be able to help your kid. Need help getting set up? Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.  

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Titles Not in the Prince Songbook: Estate Planning Documents

While it may seem strange that someone as rich and famous as the Purple One could have died without a proper estate plan, it's not as uncommon as you'd think…64 percent of Americans don't have a will.

Forbes' article, "Prince and Estate Planning: What We Can Learn from the Late Musician's Financial Picture," reminds us that you don't have to be a millionaire to create an estate plan. Putting even a simple estate plan into place will save your loved ones stress and headaches when you pass away—no matter how large your assets are.

Here are the six key documents you should have to protect your assets and your family in the event of your passing:

1. Beneficiary Forms. This indicates who gets the assets in your 401(k)s, IRAs, life insurance policies, pensions, and other financial accounts upon your death. These designations take priority over the directives in your will, so keep them up to date.
   
   
2. POD and TOD Designation. A payable on death (POD) form typically says who should receive the money in your checking or savings accounts when you pass away. A transfer on death (TOD) form is similar but typically for brokerage accounts. A TOD deed says who takes over the deed to your home after you die.
   
   
3. Durable Power of Attorney. This important document designates a person to make healthcare or financial decisions for you if you become incapacitated or unable to make them for yourself.
   
   
4. Living Will. This is also called an Advance Health Care Directive. It details the way in which you want your doctors to treat you should you become unable to communicate those wishes.
   
   
5. Will. This outlines how you want your probate assets divided, as well as who should become guardian of any minor children.
   
   
6. A Living Trust. This document, like a will, says how you want your property and funds distributed and who will take care of your minor children. It also appoints a trustee to carry out specific wishes for your assets. Unlike a will, assets held in a trust don't have to go through probate. A trust can be used to help manage your assets and property while you're still alive.

Reference: Forbes (April 29, 2016) "Prince and Estate Planning: What We Can Learn From the Late Musician's Financial Picture"

By securing the help of a qualified estate planning attorney, you will leave a kinder financial legacy for your loved ones than Prince did for his family. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.   

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Wife of 'Rhinestone Cowboy' Cautions to Plan for Alzheimer's

Kim Campbell didn't initially see that her husband, music legend Glen Campbell, had Alzheimer's.

Kim first saw the signs, but chalked it up to the normal aging process. However, once she suspected that her husband had a serious problem—more than just senior moments—she needed to get a diagnosis. Glen Campbell, now 79, was diagnosed with Alzheimer's in 2011. He performed the final show of his farewell tour in late 2012.

"Getting the diagnosis helped me a lot," Kim Campbell said in a recent telephone interview with the Lexington Herald-Leader, in "Wife of Glen Campbell takes on role of Alzheimer's advocate, speaker." She was candid with the reporter, admitting, "Before the diagnosis, I would get frustrated with him, and irritated and annoyed."

Alzheimer's impacts about half of all people over the age of 85 and kills nearly 100,000 Americans each year. It's named for the German doctor Alois Alzheimer, who discovered the distinctive tangles and plaques of the disease in the brain of a female dementia patient in 1906.

Kim Campbell said the disease needs to be approached from a perspective of examining what the patient still can do versus what he or she can't. What can caregivers do to give them comfort and joy?

Glen Campbell now resides in a memory care unit. Kim Campbell said she tried one last time to have her husband at home — "I missed him so much, and I thought, I've just got to try it one more time. (But) I couldn't bathe him without a fight, or change his clothes. Glen's a big man, and he was not easy."

Kim Campbell said she speaks out about Alzheimer's disease to help families because Alzheimer's "is definitely the most feared disease. You lose control of your life. There are identity issues and autonomy issues."

Campbell also suggests that caregivers give themselves breaks and take care of themselves because the stress for caregivers is enormous.

She also emphasized that estate planning is very important and noted the need for advance healthcare directives.

Reference: Lexington (KY) Herald Leader (February 24, 2016) "Wife of Glen Campbell takes on role of Alzheimer's advocate, speaker"

Make sure you're prepared for whatever life might throw at you. Give us a call at (978) 342-1914 or visit us at www.dellamonaca.com.