Category Archives: Power of Attorney

The need to know basics about Powers of Attorneys

What you need to know about Power of AttorneysFor those that have an aging loved one, it’s very common to visit a Massachusetts elder law attorney to establish power of attorney, or POA. Simply put, power of attorney gives someone legal permission to act on someone else’s behalf. This comes in especially handy for writing checks, signing legal documents, and handling any other legal matters when a loved one is either unfit or unable to do so. Essentially, it’s one loved one signing over his/her legal rights to another person in the event that they’re not able to make such decisions for themselves. It can be an emotional time, realizing that a loved one is aging and that something like a POA needs to be done, but it’s a necessary evil.

Acquiring Massachusetts power of attorney is simple and fast, typically only taking a matter of minutes with a Massachusetts elder lawyer to complete.

Here’s a look at the two most common types of POAs:

  • Regular POAs: This POA is applicable only to financial and commercial situations – powers are ceased in the event of incompetency and/or incapacitation.
  • Durable POAs: Unlike regular POAs, durable POAs are applicable in the cases of incompetency and/or incapacitation. This is most applicable to situations where loved ones are residing in nursing homes or hospice and time is running out.

Here’s a look at what rights both of the aforementioned POAs allow:

  • Buying and/or selling of real estate property.
  • Filing of tax returns
  • Banking
  • The purchase of life insurance
  • Employment of help
  • Disclaiming interest

It’s recommended that everyone look into establishing a power of attorney, as it can save a lot of time and frustration in the long run by entrusting someone to look over assets and finances in the event that an aging relative is not able to.

For more information on establishing power of attorney, contact us today.

Powers of Attorney Basics

massachusetts-elder-law-power-of-attorneyA power of attorney is a document that gives a designated person known as an “agent” or “attorney-in-fact” authority to act on behalf of another person (principal) with respect to specific assets, financial and legal decisions. A power of attorney can be limited in scope or broad in scope. If it is broad in scope it is known as a general power of attorney. The power of attorney should contain the language to keep it in effect while the principal is incapacitated, but should be prepared while the person is still competent. Each power of attorney must conform to the laws of the state. It is best prepared by an elder law attorney or estate planning lawyer with experience in elder law. In a power of attorney, a Massachusettes elder law attorney should identify the desired persons to have authority to act on behalf of the principal. The document should detail powers related to long-term care planning and government benefits like Medicaid and veteran’s benefits. The document should also be tailored to specific kinds of assets owned by the principal.

Your estate planning lawyer will help you decide whether your unique situation requires an immediate or a springing power of attorney, which means it is triggered by the incapacity of the principal. Keep all powers of attorney in an accessible but relatively secure location that the agent can access when needed. A copy and/or the original should be kept on file in the office of your elder lawyer. The power of attorney automatically terminates on the death of the principal.

Ten Reasons to Consult an Estate Planning Attorney

Helping your elderly parents face the financial and health-related challenges that come with growing older can put quite a strain on your other responsibilities. Enlisting the help of the right professionals leaves you with more time to spend with your family. Since there are complex state and federal regulations regarding wills and other paperwork necessary for settling an estate, it is best to consult an experienced estate planning attorney. There are ten specific benefits to working with an elder lawyer.

1. Ensure the last will and testament of your parent or relative is legally binding and properly designated.

2. Designate a power of attorney contract to ensure the right person is responsible for making medical and financial decisions if the person becomes incapacitated.

3. Create a living will. Living wills help your elderly relatives make their wishes clear and save you a lot of stress when the time comes for difficult decisions.

4. Avoid mistakes. A practicing estate planning lawyer can craft a strong will that covers all the bases, while most packages designed to help you do it yourself lack coverage of crucial areas.

5. Handle any business or investment transfers smoothly and without delays.

6. Address complex situations where blended or extended families are involved. Planning the estate is much more complicated if your elderly relatives have had more than one marriage.

7. Minimize the taxes heirs will need to pay by choosing the right type of trust.

8. Update and change any existing wills and estate paperwork. Changing laws and family structures make old agreements insufficient very quickly.

9. Take care of disabled family members for their rest of their life. A good probate lawyer can help craft a plan that ensures that the people in your family with special needs never go without support.

10. Make the process easier. Planning an estate is stressful for both the elderly and their helpers, but an experienced professional helps.

Massachusetts Elder Law Planning for Long-term Care

longtermcare-elder-lawElder law attorneys in Massachusetts can help you solve issues regarding long-term care arrangements. If you are not proactive and speak to a Massachusetts elder lawyer early on, long-term care costs can deplete the estate of you or your loved ones. Although insurance may help assuage some of the financial burden, an estate planning attorney can present different options to you.

Long –Term Care Insurance Policies

As part of your estate planning, you may decide to take out an insurance policy in the case you or a loved one requires extensive medical care in a long-term facility. Policies available cover nursing home care and assisted living costs. Your elder lawyer can include policy terms in your living will along with give you advice on how to select the best policy. Since you may not need long-term insurance for years, choose an established insurance provider with a long track record of honoring claims. A Massachusetts elder attorney is likely to point out the importance of an inflation rider that allows the benefit amount to increase each year. If you need long-term care in 10 or 20 years, you want to make sure the coverage you have is sufficient.

Getting Your Wishes Granted

An elder attorney ensures that you or your loved one gets the care you want and deserve. In your living will, you could instruct your loved ones on the type of facility you want to be placed. A list of facilities and nursing care providers can also be listed in a long-term care plan. Your attorney also helps you find the funds from your estate to pay for long-term care if required. All monies are reviewed during your consultation to make the smartest financial decisions. Monies used for long-term care can come from medical insurance, reverse mortgages, long-term care insurance, veteran’s benefits, income and savings.

Documents You Need

Telling your children or grandchildren your wishes for long-term care is not enough. A MA elder care lawyer assures all documentation is filed and legally-binding. Your attorney can draw up your last will and testament, living will and power of attorney documents. In your documents, you could also designate a personal care coordinator. This person is in charge of making the decisions when you are medically incapacitated due to old age or disease.

Speak to a MA elder lawyer early on to avoid financial disaster. Nursing homes and assisted living facilities cost hundreds of thousands of dollars if used for long-term care. Avoid losing your entire estate by planning for this possibility with an elder law attorney.

Estate Planning – Family Businesses

Family Business Estate PlanningSmall businesses can be tricky to manage. One of the most difficult types of small businesses to deal with is the family business. These companies are often easily recognized with business signs which read something along the lines of “Smith and Sons” or taglines that say “family owned and operated.”

In addition to the usual tension that goes along with almost any family business atmosphere, there’s always the issue of estate planning. This tension usually escalates when it comes to determining succession within the business. Many times this “planning” doesn’t occur until after the head of the family business is incapacitated or has passed away. During such a stressful time for the family it can be extremely difficult to come to a rational decision for how the business should be carried on. This is why it’s important to obtain a reliable estate planning attorney prior to the establishment of a family business. In creating a plan for business succession the added stress of this type of decision can be avoided in the future.

Contact Estate Planning Attorney Adam J. Tobin to arrange a free consultation or to learn more about estate planning.

Good Advice to help Mom and Dad with Finance

cute-old-couplePersonal finance is never easy. It can be even more difficult when you’re faced with helping your elderly parents’ with their finances as well.

It’s a tough situation. Not only are you grappling with the reality that they won’t be around forever, you’re also having to deal with the stress of ensuring their financial security. Not the easiest subject to approach. Especially with the fact that you’re parents have lived their lives and have been independent for so long. Just the thought could make them feel like a piece of their dignity is being taken away.

But all parents aren’t the same. Some may realize they need help and are open to sharing their financial situation with their children. Others may guard it like Fort Knox. Some may be embarrassed or in denial of their financial standing. Which ever the case may be, you want to show understanding when the conversation is brought up.

Even though there’s no single way of speaking to elderly parents on the subject, here are a few handy tips that could help both you and your parents.

Don’t Force It. Kindly offer assistance to help Mom and Dad with their budgeting and bills.  Use quality time to go through accumulated bills, write out checks or have Mom and Dad sign them.  Set up automatic bill-pay plans for reoccurring bills and teach them about online banking.  Make it clear that you’re there to help and not stripping them of control.

Use online banking to your Advantage. Gain access and monitor your elder parents accounts without making it too obvious.  This gives you the ability to detect questionable incorrect or duplicate transactions. Another option is to arrange statement copies mailed to you by the banks with Mom and Dad’s approval of course.

Establish a durable power of attorney. Speak with your elder law offices and properly draft and establish a durable power of attorney that gives you the ability to legally take control when necessary, especially when a parent’s competence are impeded.  Explain to them that it will allow you to respect their wishes and is meant to be a reassurance.  Remember, that a power of attorney must be signed before a parent loses sound mental judgment. Keep the original power of attorney safe. Have it locked up somewhere fireproof and out of reach from anyone except your self.

Put yourself in their shoes. To make the process smooth and beneficial for everyone, be genuine and understanding. Know where you’re parents are coming from and be able to communicate your feelings and explain that by helping them with their finances will give you peace. Mom and Dad may view this as taking care of you and not a suggestion of their declining state.

Communication is key. When managing your elderly parents finance, be sure to fully disclose everything and keep them in the loop.  Keep them engaged and active with the decision-making.  There’s a lot of trust involved, so let them know what’s going on with their money. Same goes for all brothers and sisters. They also have the right to know what’s happening.

Get organized. If anything is in disorder, help Mom and Dad organize all their paperwork that may involve income, expenses, and savings.

Keep a record of everything. Keep a record of any and all transactions or changes you do with their finances, including writing checks, receipts of purchases, and bill payments.

Don’t forget… there’s no simple solution.  Not every approach will work, but do what works best for you and your family and everything will fall in line. Just don’t put it off until it’s too late.

If you would like to consider setting up a power of attorney or need any other legal advice in elder law, please contact the Law Offices of Adam Tobin today. We would be glad to help.

Estate Planning 101

The idea of “estate planning” can be a bit intimidating for some people, which is unfortunate since the main reason of doing so is making sure your loved ones are provided and cared for.

Estate Planning 101

Another misconception of estate planning is that it is only for the elderly, however, if you are a parent with children who will need care and direction, it is better to start planning your estate earlier in case you suddenly become incapacitated or worse.

Estate planning needs to be factored into your overall financial plan, along with your children’s college tuition and your retirement needs in order to be really effective. Your estate consists of all your property, which includes your home, personal property like cars and furniture, and intangible property like insurance, stocks and bonds, bank accounts, and pension and social security benefits.

If you die without a will, your property will still be distributed, and essentially, by not leaving a valid estate plan, state law will end up writing your will for you. So what can estate planning do for you?

Provide for your immediate family

A good estate plan makes sure that your spouse and loved ones are provided for. Couples with children can ensure their education and upbringing is not left to chance. For children under 18 years of age, both you and your spouse should have a will that nominates personal guardians for them. If that is not specified, a court would have to decide where your kids will live and who will make all important decisions for them regarding their money, education, and way of life.

Provide for other relatives who need help and guidance

If you have a family member, such as an elderly parent or disabled child, whose life would become more difficult without you, establishing a special trust fund would be a good way to ensure their future.

Get your property to beneficiaries quickly

By planning ahead, you can make certain that your beneficiaries receive the property you’ve left them promptly and without unnecessary expenses and court interference.

Plan for incapacity

Use living wills and durable powers of attorney to plan for possible mental or physical incapacity; pick someone you really trust to make important health and financial decisions for you in the event that you are incapable of doing so for yourself.

Minimize expense

Estate planning can reduce the expenses associated with transferring property to beneficiaries, such as probate costs, and by reducing these expenses you will be leaving more to your loved ones.

Choose executors/trustees for your estate

By choosing competent executors/trustees, you can save your estate money, reduce the burden on your survivors, and simplify the administration of your estate.

Ease the strain on your family

You can take a lot of the burden off your grieving loved ones by planning ahead for funeral arrangements and other expenses, and by letting your loved ones know how you want your affairs to be handled so they do not have to deal with unnecessary added stress.

Help a favorite cause

Your estate plan can help support religious, educational, and other charitable causes, either during your lifetime or upon your death, and at the same time take advantage of tax benefits designed to encourage charitable giving.

Reduce taxes on your estate

The idea is to get the maximum amount possible to go to your loved ones and designated beneficiaries. Properly planning your estate can help you with that, giving the maximum allowed by law to your beneficiaries and the minimum to the government.

Make sure your business runs smoothly

If you have a small business, the operation could turn to chaos without you there to guide it. A good estate plan can provide for an orderly succession and continuation of your business affairs by spelling out what will happen to your interest in the business.

estate-planning-lawyer-can-help-you-plan-your-estate

Consulting an elder law attorney, such as Adam Tobin, could prove very helpful when it comes to planning your estate. Contact Adam Tobin to get helpful advice from a knowledgeable estate planning attorney.

The Five Phases of Retirement Planning

Retirement in America has changed radically over the last few decades; years ago you expected to work most of your life for a single, large  employer, then you would count on a pension from that employer. “Retirement planning” was figuring out how to use your new-found free time. Today, however,  it’s more likely that you will be living in retirement on money that you saved yourself while calculating rates of return and deciphering tax rules.

the-five-phases-of-retirement-planning

This self-funded retirement constitutes a shift of responsibility. To help those who are beginning to plan for retirement, or those who just want to learn ahead of time, here are the five phases of retirement planning, including key aspects that should to be carried out during each phase.

Phase 1: Accumulation

This period begins when you enter the workforce and begin to set aside funds for later in life, and ends when you actually retire. If your employer offers 401(k), 403(b), or 457(b) plans, sign up and contribute the maximum amount allowed. The “new normal” requires retirement savings rates for most Americans to exceed 10 per cent. If you’re self-employed, look over your plan to see if you’re shortchanging yourself on Social Security to reap tax reductions, and if you are, consider re-working your plan.

Phase 2: Pre-Retirement

This occurs during the final years of Phase 1: Accumulation and should begin either when you reach 50 years of age or when you are 15 years away from retirement, whichever happens first. Now is the time to get your plan in place; make sure your finances are lined up correctly for the day your retire so nothing is left to chance. If the company you work for has a benefits specialist, schedule an appointment to become informed about the different ways you can convert your employer retirement savings into a stream of income or an IRA (Individual Retirement Account). Consider using “scenario planning” and start learning about Social Security and your options for receiving retirement benefits. Familiarize yourself with the basics of Medicare, including Medicaid.

Phase 3: Early-Retirement

This phase lasts from the day you retire until you turn 70. (For those who do not plan to retire until well into their 70s, some tasks in this phase may occur later.) An important purpose of this phase is to create a clear communication channel with your family: information can be shared, questions can be discussed, and decisions can be made in a calm and supportive way. It’s also the time to evaluate how well your finances are working now that you have started to use your retirement savings. Fine-tune your income and expense projections, remembering to take into consideration how you will meet minimum distribution requirements from  your tax-deferred accounts.

Phase 4: Mid-Retirement

This begins at age 70 and lasts as long as your high-functioning and able-bodied. Despite your good health, begin looking at what steps you would want your family to take if your condition declines significantly. In most cases, your ability to make all your own decisions, care for yourself, engage with the world, and manage your affairs does not disappear in a split second. It takes courage to dive into a  conversation about giving up and transferring control.

Phase 5: Late-Retirement

This phase begins when your health has taken a turn for the worse and it is not likely for it being fully restored and you require significant help to function from day to day. The hope for this phase, is that by this point all the planning you have done in prior years will make this transition as manageable and life-affirming as possible.

For assistance in retirement planning, it would be helpful to hire a qualified elder law attorney. Contact Adam Tobin to meet with a knowledgeable Massachusetts elder attorney, and receive advice and tips to make your retirement planning a smooth process.

Recognizing Alzheimer’s and Dementia Awareness Week

“Does mom want to live in a nursing home?”

“Does dad considers living with Alzheimer’s or Dementia to be quality of life?”

“Do my parents have legal documentation in place that ensures someone can act on their financial behalf if they are unable to?”

discuss-alzheimers-and-dementia-weekThese three questions are just a few of things that adult children should talk to their parents about during Alzheimer’s and Dementia Awareness Week,  which lasts from February 24th until the 21st. Knowing the answers to these and other questions is very important; families could be left struggling financially, battling over long-term care, and not truly honoring your parents’ wishes if they don’t have this conversation beforehand.

Talking about Alzheimer’s and Dementia can be stressful and upsetting, which often times leaves families to avoid talking about it until it’s too late. However, from a legal standpoint, if you don’t know your parents’ wishes or the documentation they have in place, you could be left in great disarray in the addition to having to see a parent go through this debilitating disease.

There are five conversations to have with your parents as soon as the opportunity presents itself:

Long-Term Care Preferences — Would your parent like to live in a nursing home or would they prefer in-home care? If they would prefer to live in a nursing home, talk about the amenities and activities they would like to be able to enjoy. Discussing these questions in advance can make the transition into an assisted living facility or a home health care program easier on everyone when the time comes.

Current Legal Documentation — It is crucial for you to find out what legal documentation your senior parents have in place before incapacity occurs. Make sure your parents have a power of attorney, health care directive, and HIPAA (Health Insurance Portability and Accountability Act) forms so someone can easily step in to make medical or financial decisions on their behalf. Otherwise, your family will be forced to petition a court for control over your parent’s affairs if they pass the point of legal capacity.

Medical Preferences and Wishes — It’s very important to find out what type and how much medical care your parents wants after receiving a diagnosis of Alzheimer’s or Dementia. Ask questions like Do you have specific wishes about life support or other end of life treatments? Who do you want to make decisions on your behalf? The answers will help your parents feel secure knowing their wishes will be carried out during an otherwise emotionally-charged time.

Current State of Financial Affairs —  To ensure their finances stay properly managed after a diagnosis of Alzheimer’s or Dementia, this week is a good opportunity to ask your parents the tough questions about their financial affairs. This includes finding out the location of any safety deposit boxes, bank accounts, brokerage or investment accounts, and any outstanding debts or other assets you are unaware of. Otherwise, essential assets needed to cover long-term care or other expenses could be overlooked when memory loss ultimately occurs.

Important Contacts and Information — While their memory is sharp, work with your senior parents to make a list of important contacts and information that will be useful to the your family should memory loss occur. This should include documenting key doctors, professional advisers such as accountants, attorneys, financial advisers, as well as important passwords for online documents.

Having these conversations certainly aren’t easy, but it can help your family through the transition of living with Alzheimer’s or Dementia, by simply planning ahead. If you have any trouble dealing with the legal aspects of this process, consult a qualified elder law attorney for helpful advice.

5 Important Facts to Know about before Serving as a Trustee

It is very common for clients to name adult children or other reliable family members as successor Trustees to serve upon the incapacity or death of the client. Being a Trustee is both a privilege and an honor, but also carries an enormous responsibility; it can be a really difficult and time-consuming job to take over.

Trustees’ duties are numerous and varied, dependent upon the type of trust, the terms of the trust, and the trust assets. Here are five common duties for all Trustees.

important-facts-for-trustees

1.) A Trustee owes a fiduciary duty to the beneficiaries.

“Fiduciary” means that the Trustee owes the highest duty of loyalty, fair dealing, and good faith to the beneficiaries of the Trust. Generally speaking, this means the Trustee must always act in the best interests of the beneficiaries, not his own. A breach of a Trustee’s fiduciary duty includes using Trust assets to invest in a business owned by the Trustee, purchasing real estate from the Trust for personal use, or personally profiting from service as Trustee by taking a commission on the sale of real estate. A Trustee who misappropriates Trust monies has clearly breached his fiduciary duty.

2.) A Trustee has a duty to carry out the terms of the Trust.

Clients may sometimes be under the impression that a Trustee is in the position of making ALL decisions regarding distributions from the Trust; while some Trusts may grant the Trustee discretion to make certain types of distributions, the Trustee may not act contrary to the terms of the Trust. For instance, if the Trust instructs the Trustee to sell all real estate properties and distribute the proceeds equally amongst the beneficiaries (after paying expenses), the Trustee does not have the authority to do otherwise. Beneficiaries of a Trust have the right to know the terms; therefore, the Trustee may not refuse to divulge information concerning their interests.

3.) A Trustee has a duty to account to the beneficiaries.

Trustee’s must keep accurate records of all Trust financial activity, and they must share that information with the beneficiaries on a regular basis. Reports of financial activity that a Trustee provides to the Trust beneficiaries are called Trust accounts. Trustee accounts should include an inventory of the assets held by the Trust, the value of said assets, and the expenses and distributions paid out of the trust. The beneficiaries have the right to inspect the Trustee’s account and to object to any item they deem inappropriate.

4.) A Trustee has a duty to safeguard the Trust assets.

The Trustee is responsible for safeguarding the assets held by the Trust. Take, for example, if the Trustee fails to adequately insure the house and it burns down. The Trustee is responsible and will have to make up for the loss with money from their personal account. Similarly, the Trustee has a duty to invest Trust assets in a reasonable and cautious manner; if they fail to do so and the Trust loses value, the Trustee can be held responsible. In some circumstances, Trustees must secure a surety bond from a bonding agent to ensure that the beneficiaries will be protected if the Trustee fails to adequately protect the Trust assets.

5.) A Trustee has a duty to properly administer the Trust assets.

Trust assets must be kept in the name of the Trust, not in the Trustee’s personal name. The Trustee is not allowed to co-mingle the Trust assets with their own funds. Usually, the Trust will have its own taxpayer identification number assigned by the IRS; the Trustee must file all required income tax returns and pay the tax properly owned by the Trust. The Trustee must provide all beneficiaries with the tax documentation they will need to file their own income tax returns.
The above facts are requirements of every Trustee, there are many more specific tasks involved in serving as Trustee. If you become Trustee for a family member of friend, consult with a Massachusetts elder attorney for help in fulfilling your duties so you can successfully carry out your Trustee responsibilities.