If something happened to you, who would raise your child? 
It’s scary to think that you may not live to see your child grow into adulthood.  It’s even scarier to realize that a Court can appoint someone to fulfill your parental role.  How can you guide the Court’s selection?  Designate your choice of a Guardian and Conservator in your Will to best control decisions involving your child.  By doing this, you provide a security blanket for your child’s care and nurturing.  

Turning 18 years old?  Happy Birthday!  You are legally an adult.  Are you ready?
 
At age 18, an individual becomes an adult in the eyes of the law. This means that a parent is NOT entitled to speak with a child’s health care providers, access bank accounts, manage student loans, file taxes, or even seek information from an insurance company.

A parent has no legal right to intervene unless the 18 year old provides permission. This becomes especially problematic if the legal adult attends college. A student may be financially dependent upon a parent but is not required to permit a parent access to the student’s financial and health life.

At age 18, a legal adult is advised to designate a parent or other adult access to information by signing a Durable Power of Attorney, Health Care Proxy, HIPAA Authorization, and Release of Electronically Stored Information. Most young adults have little, if any, assets so a Will is not typically a priority.

Your nest may be empty but you still worry about your family’s future if the unexpected occurs. How can find peace of mind knowing that your family’s future is safe and secure? 

Having the right legal tools protects you and your family from uncertainty. You may be at the peak of your personal and professional achievements and your earning capacity when suddenly, everything changes: an accident, a medical diagnosis, the loss of a job, or the death of a loved one. Who will manage your personal medical and financial matters if you cannot? You can secure a orderly transition by utilizing essential estate planning tools: Durable Power of Attorney, Health Care Proxy, Medical Directive, HIPAA Authorization, Homestead, and Will, as well as additional strategies involving a Revocable Trust, Release of Electronically Stored Information, Long Term Care Insurance, Public Benefits Programs (ie, Medicaid/ MassHealth, and Veterans’ Administration).

Medical issues usually increase with age. If you became unable to manage your affairs, who would pay your bills and make medical decisions, if needed?

If you became incapacitated, who would pay your household expenses: heat, lights, taxes, food medical expenses?  Your adult children, if any may provide some assistance and you may be tempted to transfer assets to them.  This strategy may result in unintended consequences for you. If you are unable to execute essential planning tools: Durable Power of Attorney, Health Care Proxy, Medical Directive, HIPAA Authorization, Homestead, and Will, then the Probate Court may appoint a Guardian and/or Conservator, a costly and time-consuming process. 

Your medical needs may necessitate that you hire care providers or live in a facility - a skilled nursing facility or assisted living residence.  How will you pay for your care? 

If your medical needs escalate, the cost of care may be beyond your resources.  Veteran’s Aid and Attendance Benefits and Long Term Care Insurance may be available to assist.  Even these will not pay the entire cost of care. Most residents living in a skilled nursing facility (also known as a “nursing home” or “SNF”) rely upon public benefits to pay for the cost of care.  Public benefits such as MassHealth are available to those who are financially needy and determined eligible. Preparing an application for MassHealth benefits can take many weeks or even months. 

The death of someone close can be overwhelming and confusing for survivors. Need the Probate Court appoint someone to manage an estate?  Where are the deceased’s assets? How to distribute those assets? Are all assets subject to Probate Court? 

When someone dies, anything the deceased owned needs to be distributed according to the deceased’s Will. If none, then state law determines who are the legal heirs of the deceased. A Will controls only property subject to the Probate Court. Other assets never pass through Probate Court. Assets that are jointly owned, have a current beneficiary, or are transferred on death, are not included in a Probate Court estate.

Supplemental needs trusts (also known as “special needs” trusts) are drafted so that the funds will not be considered to belong to the beneficiary in determining his or her eligibility for public benefits, such as Medicaid, Supplemental Security Income (SSI), or public housing. These trusts are designed not to provide basic support, but instead to pay for comforts and luxuries that could not be paid for by public assistance funds, such as education, recreation, counseling, and medical attention beyond what is required simply to maintain an individual.

Very often supplemental needs trusts are created by a parent or other family member for a disabled child (even though the child may be an adult by the time the trust is created or funded). But the disabled individual can often create the trust himself or herself, depending on the program for which he or she seeks benefits. Medicaid is the most restrictive program in this regard, making it difficult for a beneficiary to create a trust for his or her own benefit. But even Medicaid has a “safe harbor” allowing for the creation of a supplemental needs trust with a beneficiary’s own money if the trust meets certain requirements. This is sometimes called a “(d)(4)(A)” trust, referring to the authorizing statute.

Yes, if it is created and funded by the person seeking public benefits himself or herself.

No, if it is created and funded by someone else for the benefit of a person receiving or seeking public benefits.

Yes and no. Yes, each public benefits program has restrictions that must be complied with in order not to jeopardize the beneficiaries’ continued eligibility for public benefits. For instance, the beneficiary would lose a dollar of SSI benefits for every dollar paid to him or her directly. In addition, payments by the trust for food, clothing, or housing for the beneficiary are considered “in kind” income and, again, the SSI benefit will be cut one dollar for every dollar of value of such “in kind” income. Some attorneys draft the trusts to limit the trustee’s discretion to make such payments. Others do not limit the trustee’s discretion, but instead counsel the trustee on how the trust funds may be spent, permitting more flexibility for unforeseen events or changes in circumstances in the future. The difference has to do with philosophy, the situation of the client, and the amount of money in the trust.