Due to a 2017 Decision by the Supreme Judicial Court of Massachusetts, Almost All Trusts and Deeds Must Now Be Reviewed and Reconsidered

In the 2017 case of Mary E. Daley v. Secretary of the Executive Office of Human Services, which I argued at the Supreme Judicial Court of Massachusetts, there was one narrow Medicaid trust issue that we won, but the Court opened Pandora’s Box with its needless commentary on issues that weren’t even before the Court, and lawyers at the Office of Medicaid are sure to exploit this commentary and attack trusts and deeds. Therefore, if you have ever executed an irrevocable trust or a realty trust in an attempt to protect assets, you need to have the trust reviewed immediately, and if you ever deeded real estate or transferred a mobile home to others, the deed or assignment needs to be reviewed and discussed with an elder law attorney.

Any change or repair to the trust or deed may not be safe for five (5) years, so there is some degree of urgency to get these legal instruments reviewed.  In particular, any trust or deed that mentions the possibility of making an appointment or gift to non-profit organizations or entities could be problematic.

In addition, even though the law regarding life estates has not changed, the Court strangely brought up an Idaho case in one of its footnotes and commented that a life estate may not protect a home from being attacked by MassHealth estate recovery. Therefore, any deed that has a life estate in it or where the original owner reserved the right to use and occupancy could end up not being as safe as may have been previously thought, and all such deeds need to be reviewed and discussed with an elder law attorney. Those deeds may be only one step ahead of a change in law, and it may make sense to make a change that gets you two steps ahead.

Our Main Office in Plymouth Has Moved

We have already sent out a notice to our clients, but just in case you didn’t receive it, please note that we’ve moved our main office: our Plymouth office is now located at 118 Long Pond Road, Suite 206. (Nothing else changed.)

Amount of Assets that the At-Home Spouse Can Keep When Applying for MassHealth Long-Term Care for Spouse in Nursing Home Has Increased to $115,920 for 2013

When one spouse enters a nursing home, the spouse at home (known as the “community spouse”) is allowed to keep certain assets, including the principal residence, one car, and an amount of the other assets known as the “community spouse resource allowance” (sometimes knows as the “spousal resource allowance).  The community spouse resource allowance is indexed to the U.S. Consumer Price Index, and has increased to $115,920 for the calendar year 2013. 

With careful planning, the community spouse can keep much more than the community spouse resource would seem to allow.   For more information on this topic, see my detailed post at my Massachusetts Estate Planning, Probate and Elder Law blog, entitled  Protecting Assets and Maximum Income for the Community Spouse When Applying for MassHealth in 2013 to Help Pay for the Unhealthy Spouse’s Nursing Home Bills in Massachusetts

Social Security Statements Are Available Online (and Only Online)

Social Security stopped mailing out annual Statements starting in 2011.  You can no  longer request a copy by mail or by telephone and they even disabled the on-line request for a copy to be mailed.   Although it is a legally mandated function of this department, they used an “emergency” ruling that allows them to stop fulfilling this obligation if it could potentially bankrupt the organization.

You can obtain this information online and get immediate access to your Statement, including earning history, estimated benefits amounts and eligibility information and it is easy.   To sign up, go to the Social Security web site; http://www.socialsecurity.gov/  and on the left hand menu go to Get Your Social Security Statement.   In order to register you will be required to enter your personal information, full name, Social Security number, and date of birth, mailing address and phone number and a working email address.  Social Security uses Experian to verify your personal data so be prepared to answer some questions to verify your identity.

This is the same type of account that people use who are already receiving benefits and you will need this to account you’ve set up to later set up your own Medicare, Retirement or Disability benefits.   Make sure you keep the login information in a safe and secure location.

Declarations of Homestead Filed Before March 16, 2011 by Trusts Are Legally Ineffective

Before the new Massachusetts homestead law took effect on March 16, 2011, it did not appear that a trust could file a valid Declaration of Homestead.  The highest court in Massachusetts has now confirmed that point in a February 16, 2012 ruling.

None of my clients ever tried to have a trust file a Declaration of Homestead under the March 16, 2011 law, but if any of you had done so with another lawyer,  you need a new one under the current law.

For more information see my post at my Massachusetts Estate Planning, Probate and Elder Law blog, entitled Supreme Judicial Court Rules That Trusts Were Ineligible for Homestead Protection Under Pre-March 25, 2011 Massachusetts Law

Amount of Assets that the At-Home Spouse Can Keep When Applying for MassHealth Long-Term Care for Spouse in Nursing Home Has Increased to $113,540 for 2012

When one spouse enters a nursing home, the spouse at home (known as the “community spouse”) is allowed to keep certain assets, including the principal residence, the car, and an amount of the other assets known as the “community spouse resource allowance” (sometimes knows as the “spousal resource allowance).  The community spouse resource allowance is indexed to the U.S. Consumer Price Index, and has increased to $113,640 for the calendar year 2012. 

With careful planning, the community spouse can keep much more than the community spouse resource would seem to allow.   For more information on this topic, see my detailed post at my Massachusetts Estate Planning, Probate and Elder Law blog, entitled Protecting Assets and Maximum Income for the Community Spouse When Applying for MassHealth in 2012 to Help Pay for the Unhealthy Spouse’s Nursing Home Bills in Massachusetts

New Massachusetts Pet Trust Law

Effective April 7, 2011, there is a new law in Massachusetts that allows you to set up a trust for a pet.  In the past, pet owners were limited under Massachusetts law to leaving funds to a person and hoping and praying those funds would be used to take care of the pet.  Under this new law, an actual trust can be set up with the pet as beneficiary.

I have set up a new blog to deal solely with Massachusetts pet trust issues.  You can find it at http://pettrust.info.   Some of the more popular posts there include the following:

What Are the Reasons to Establish a Massachusetts Pet Trust?

What Are the Basic Components of a Massachusetts Pet Trust?

Who Should Be the Caretaker in Your Massachusetts Pet Trust?

What Are the Key Issues to Consider When Appointing the Trustee of a Massachusetts Pet Trust?

Who Should Be the Monitor in Your Massachusetts Pet Trust?

Federal Estate Tax Law Continues to Be Dealt with by Congress on a Temporary Basis

The most recent tax law passed by Congress and signed by President Barach Obama on December 17, 2010 temporarily changed the federal estate  tax laws.  Decedents who die during 2011 and 2012 now have a federal estate tax exemption of $5,000,000, but that figure drops back down to $1,000,000 in 2013, so we can expect more political arguments over the federal estate tax in the near future.

Estates of decedents who died during 2010 will automatically be subject to the 2011 tax laws unless they file an election to be taxed under 2010 laws.  For most estates under $5,000,000, 2011 law will be beneficial because assets includible in the estate will automatically receive a step-up in basis for capital gains tax purposes.  An election can be filed to have the 2010 law apply to the estate, but the Internal Revenue Service still has not finalized the form, instructions, or due date.

At-Home Spouses Should Obtain Legal Advice When Applying for MassHealth to Cover Nursing Home Costs for Their Spouses

In a recent 2010 Massachusetts case, a wife didn’t obtain timely MassHealth approval to cover her husband’s nursing home bills, and ended up being sued by the nursing home.  Even though she had not signed anything at the nursing home that would cause her to be financially responsible for his bills, she still lost the case and had to pay $45,243.24 to the nursing home out of her own pocket.  Why?  Under Massachusetts law, spouses are financially responsible for “necessaries” for their spouses, and this case makes it clear that nursing home bills are considered necessaries under Massachusetts law.  For more information, or to read the case yourself, go to Are You Personally Responsible for Your Spouse’s Nursing Home Bills in Massachusetts?

There is an official way to refuse to cooperate with the MassHealth application process, but unfortunately the wife in this case didn’t handle matters correctly.  In most cases, by making the right moves, the at-home spouse can keep all the assets anyway, so timely cooperation usually makes sense.  For more information about how the at-home spouse can keep all the assets, go to Preserving Assets and Maximum Income for the Healthier Spouse When the Other Spouse Enters a Nursing Home

New Massachusetts Guardianship and Conservatorship Laws Took Effect on July 1, 2009

New guardianship and conservatorship laws took effect on July 1, 2009.  Even previous guardianships and conservatorships were affected by the new law.  Strict financial planning deadlines must be followed, and a court order is now needed before making a nursing home placement.

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