Trusts
December 21, 2011
Most Americans don’t realize that they have an estate. Most people think that an “estate” includes a mansion in the hills, a private jet, or millions of dollars in investment accounts. But the true definition of “estate” is a person’s possessions or property—regardless of the size or amount. Everybody has an estate; and if you own a home, have a retirement account, or have any personal property of value you should consider creating a trust for your “estate.”
Trusts come in lots of flavors. They can accomplish all sorts of fancy tax planning, can include certain family members but not others, can run scholarships or foundations – the things you can do with a trust are endless. But most clients in my office need what I call the “plain vanilla” trust. That’s a straight-forward revocable family trust. Mind you, it’s still twenty pages long and takes hours to put together, but within the world of trusts, this is the simple one. The one that most of us should have, the one that I have set up for my family.
A revocable family trust serves two main purposes. The first goal – the one everyone thinks about – is that it will distribute your stuff after you die. It substitutes for the will. Within your trust, you do what you typically think of as the will’s job – you say how your want your estate distributed after you die. Usually people split their assets equally among their children, but that’s not always the case. We can designate whomever you want and in whatever portions you want under your trust (we can do that under a will, too, but right now we are talking about trusts).
So why would we use a trust instead of a will? Simple answer: it will save your family lots of headaches. If you don’t direct your assets to a trust, and instead just leave all your assets in your own name, then when you die those assets will be governed by your will. So far so good. But after you die, there has to be a legal process of changing title on your assets from your name to the people you’ve named in your will. That legal process is called the “probate process.” It requires that your children work with an attorney, go through the court’s system (which can take at least a year, quite often longer), complete lots of paperwork, and spend plenty of money on court fees and attorney’s fees. If you instead set up a trust now and take the time to transfer your assets to your trust now, then after your death, your children have precious little to do. The trust will already own the assets. Now the trustee (probably one of your children) just has to review bank statements, sell the home, and cut checks to all your beneficiaries. The trustee will have some work to do, but an awful lot less work compared to taking all of your assets through the probate process.
Another reason to have a trust – and this is the reason that no one thinks about except us lawyers who think of all the “what if’s” – is to protect you while you are living. If you transfer your assets to your trust now, and you go on vacation or are in the hospital or develop dementia, then your successor trustee (usually a child, sometimes a sibling or best friend) can take over managing your assets. Bills will be paid, that CD will be renewed when the maturity notice comes in the mail, etc. Your successor trustee steps into your shoes and manages your money, so things continue seamlessly, even though you are unable to manage your own affairs. What a relief.
I should clarify what it means to “transfer your assets to your trust.” That’s really a fancy way of saying that you are “changing the name” on your accounts. For example, if you have a money market at the bank in your name, then after you sign the trust, I would tell you to call the bank and have them change the owner of the money market from you individually to the revocable family trust that you just signed. They will probably have you complete a new signature card.
Since you will be the trustee of your trust, nothing will feel any different on a day to day basis – you are still the one accessing your accounts, reviewing statements, paying bills, etc. The difference is that you have a Plan. If you need help managing your assets during your lifetime, you have empowered your successor trustee to step in and take care of you. And you have lined up your assets so that your family will not have to deal with the hassle and cost of probate after you pass away. A plan. Feels good, doesn’t it?
Thrown into the Deep End
May 18, 2010
Did you see Michelle Singletary’s column this weekend in the Boston Globe? I like her column, The Color of Money. She writes in a straight-forward, honest manner, with guidance targeted at “regular folks” like myself.
This weekend she wrote about essentially being thrown into the deep end of the pool of elder care. If you read her column, you saw that her feelings, questions, fears, and sense of being overwhelmed and without direction are those very same feelings that most children of seniors (or healthier spouses of seniors) are experiencing every day.
While I can’t make your parent or spouse healthier, and I can’t bring back their memory skills, I can make it easier for you to handle your new caretaking role. The elder law attorney’s job has many aspects – for one, I help elders stretch out their assets to stay at home for as long as possible.
How do I do this? We look at MassHealth benefits and Veterans Benefits as a way of bringing more help into the home. We look at selling the home and building an in-law apartment on a child’s house. We explore setting up a contract between parent and child that allows the child to quit her job and care for her parent but still earn some income. And if nursing home is a possibility, we explore ways to maintain a healthy spouse at home and also explore various methods of safely and legally transferring some assets to children.
But the elder law attorney’s role goes beyond this – my job is also to pull in other professionals who can help you become a better – and more sane – caregiver. I may invite in an Alzheimer’s coach to teach a family how to work with a family member who is changing before their eyes; a geriatric nurse to guide a thoughtful conversation on wishes for end of life care; a geriatric care manager to create and manage a schedule of home health aides – and more.
I can’t get you out of the deep end of the pool. Life takes our parents and spouses in certain directions. But I can teach you how to swim.
This Made Me Laugh
May 12, 2010
Talking to a client this afternoon, and he mentions that he is attending an annual get-together tonight with some friends. The way he describes it: “A bunch of old men getting together and telling lies.” I love it!!
Veterans Fair This Saturday in Hull
March 10, 2010
Come out to beautiful Hull this Saturday for a Veterans Health and Wellness Fair. This is being put together by the Hull Board of Health and the Hull Veterans Council, and it is shaping up to be a great event.
There will be blood pressure checks, immunizations, even yoga and reiki! They will also have a skin analyzer machine. There will be education on legal issues and general health matters, as well, and much more.
The event is open to the public – veterans of all ages and non-veterans alike. Refreshments and children’s activities, too!
Taking place at the Memorial Middle School on Saturday, March 13 from 10a – 2p. The school is on Nantasket Ave., behind the L Street playing fields – you can’t miss it.
South Shore Senior Population Set to Boom
January 18, 2010
Yesterday’s South Section of the Boston Globe had a two-page story on the coming boom in the senior population. It’s reassuring to read that senior centers are reexamining their goals and programming in light of the change in clientele. The biggest issues I see facing my clients are (1) bringing in the support system required to remain at home for as long as possible and (2) transportation.
So far the societal responses to these needs have been minimal. Take transportation – the Ride is, well, a long ride. The senior centers have vans, but you need to set up your appointment in advance, and their funding allows them to transport seniors only for certain types of activities. Poor transportation options as an elder or disabled person have been the flip-side to the choice of living the quiet life in the suburbs.
As for remaining at home for as long as possible, there is more help available here, and I help my clients access the resources available to them as best as possible. There is veteran’s funding, MassHealth money, and then good old fashioned creativity – like setting up a contract with a child that allows her to leave her job in order to care for her parents, yet be paid so that she can still meet her own obligations at home. Or, another example would be two or three elderly neighbors sharing the services of a personal shopper or a personal chef so that the grocery shopping and cooking is taken care of.
As a society, we expect to be taken care of in our old age, yet we encourage our children to cross the county in search of their dreams, so we don’t have a built-in support system. And we don’t like to pay taxes. So who will care for the Boomers? I think the coming decades will see a blossoming of the American “creative spirit” – neighbors banding together to develop shared living arrangements, new businesses developing to serve seniors at home at prices they can afford. And in the mean time, each aging Boomer should be saving up funds for what they hope will be a long retirement. Meeting with a trusted financial advisor would be a very good first step.
In Case of Emergency – Let Your Cell Phone Help You
November 19, 2009
It’s scary to think about having a medical emergency and not being able to speak to tell the EMT’s who to call. Well, if you carry a cell phone, one solution is to put the names and numbers of your emergency contacts in there. EMT’s, firefighters, and other first responders know to look there. Just add those names to your address book as “ICE” – In Case of Emergency.
In my phone, I have a few people listed – I have ICE1, ICE2, and ICE3.
More Reasons to Write up a Caregiver Contract
November 13, 2009
I’ve been writing a lot about caregiver contracts lately. That’s because they represent the ideal solution for so many families.
Many children become part-time or even full-time caregivers for their aging parents. Sometimes a child needs to be paid for this – usually that is the only way she can afford to leave her job in order to stay home and care for Mom. And in some families, the parent insists on paying the child, or at least contributing to groceries and utilities – because she doesn’t want to feel she is taking advantage of anyone or being a burden.
Earlier posts describe why a written caregiver contract is important to prepare for the possibility of a future MassHealth nursing home application, but here is something that would apply more immediately: in addition to drafting a good contract, an elder law attorney will also set the family up with a payroll service that will make sure the child receives the benefits of an employee. Namely, the child will have two special protections.
The first is worker’s compensation coverage. Have you ever helped a frail elder with a shower? How easy is it to hurt your back? Very. With a proper caregiver contract arrangement, that child can collect worker’s comp from her injury.
The second protection is the unemployment benefit. Sometimes, no matter how good a job a child does of keeping Mom at home, there comes a time where the care Mom needs exceeds what the child can provide, and she must move to a nursing home. Now the child is unemployed.
For so many families, paying a child to care for the parent is the best solution. Having informal, unwritten understandings is typical, but leaves both the parent and child open to too many pitfalls. By working with an elder law attorney to craft a good caregiver contract and to set up a payroll service to take care of the deductions and taxes, both the parent and child will be much better protected in the long run.
US Census: Beware Scammers
October 27, 2009
The US Census, conducted every ten years, is underway. You can count on scammers to use the opportunity to try to rip people off.
A Census worker will be coming to your door. They will have an identification badge, a copy of the letter that was previously sent to you by the Census Bureau, a bag or laptop with the Census Bureau insignia, and a hand-held device.
They will ask you for your name so that they can verify your address.
Legitimate census workers will NOT ask for your Social Security number, your credit card number, bank account numbers, or any other confidential information.
If anyone does claim to be with the Census and asks you for your Social Security number, credit card, or bank information, ask them to leave.
Also note that the Census will not contact anyone by email. If you receive an email claiming to be from the Census, it is not legitimate.
Keep an eye on your neighborhood, especially the homes of elderly neighbors. Seniors are particularly susceptible to scam artists.
Does Your Special Needs Child Really Need a Guardianship?
October 19, 2009
Last week I gave a presentation to Weymouth parents of special needs young adults, and from our conversation, it was clear that the school system was telling them that when a special needs child turns 18, the family must obtain a guardianship. As I’ve written elsewhere, this costs money, involves lawyers, and requires going to court. And for kids with developmental disabilities, there is the daunting clinical team report, which requires coordinating three different professionals.
Fortunately, guardianship (and its accompanying conservatorship) is not necessarily the answer for every family. For lots of kids, a Health Care Proxy and Durable Power of Attorney are the way to go. I don’t know why school special ed personnel are not educated on this, but the Health Care Proxy and Durable Power of Attorney are much more respectful of the young adult’s autonomy and cost significantly less – thousands of dollars less – with a fraction of the hassle.
To sign her Health Care Proxy and Durable Power of Attorney, the young adult needs to have a basic understanding of what she is appointing the named agents to do (usually her parents, but not necessarily – it’s up to her to decide whom to name). Ask yourself: Does she understand that money buys her things? That money must be saved and spent with care? Does she like to have someone help her manage money and make decisions? Does she like to have someone involved with her medical care? Would she like for someone to be able to tell doctors what to do if she can’t tell them herself?
If you think the answer to these questions is “yes,” then meet with a special needs attorney to discuss a Health Care Proxy and Durable Power of Attorney instead of guardianship and conservatorship. Technically speaking, the question of whether a person has the requisite mental capacity to sign these documents is a legal one, so the attorney will need to meet with the young adult alone – maybe more than once – to make that determination for herself.
And if the attorney decides that indeed this young adult can create and sign these documents, than the small investment you have made is more than outweighed by the savings of avoiding guardianship and conservatorship – in terms of the young adult’s autonomy and your family’s time, money, and emotional capital.
End of Life Wishes & Living Wills
August 25, 2009
Clients are always asking about living wills. Massachusetts law does not recognize a living will, and it’s also impossible to write a thorough, well balanced statement of your end of life wishes in just a few paragraphs.
I provide clients with a solution to their goal, but in a much better form. I give my clients a workbook called Your Way. It is published by a nonprofit in California, H.E.L.P.: Helping People Meet Aging-Related Legal & Care Challenges.
This workbook is twelve pages long and very thoughtfully walks the reader through various scenarios you could confront in an end of life situation and what kind of comfort and care you would like to receive. For example, what matters to you the most – being with friends and family? Listening to music? Being able to help dress yourself? Under various scenarios, would you want curative care or to be kept comfortable? Who do you want with you as you are dying? Where would you want to be? A twelve-page work book written by heath care professionals does a much better job elucidating your wishes than an attorney can do in a one-page living will.
If you are not a client of this office, then log onto the Your Way website and order a workbook. If you are my client, then you already have a copy. Complete the exercises and give your family the gift of knowing exactly what you would want them to do in a crisis situation.