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.)

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.

Due to 2009 Doherty Case, Irrevocable Medicaid Trusts Should Be Immediately Reviewed

Due to the recent Doherty case in the Massachusetts Appeals Court, all irrevocable trusts done for Medicaid planning purposes should be reviewed to determine whether the person who established it could be seen as having too much control over the trust.

For more detailed information, see http://elderlawblog.info/2010/09/25/doherty-case-should-cause-some-concern-about-irrevocable-medicaid-trusts-in-massachusetts/.

Durable Powers of Attorney Executed Before July 1, 2009 May Be Invalid

Durable power of attorney laws changed on July 1, 2009.  The prior law was repealed, and durable powers of attorney executed under prior law appear to no longer be in effect.  New documents should be executed.

For more detailed information, see http://elderlawblog.info/2010/09/03/is-your-massachusetts-durable-power-of-attorney-still-valid/.

Alerts for Clients of Brian E. Barreira

This blog is meant to keep the clients of Brian E. Barreira updated on major changes in law that could affect their estate plans.  Please sign up for automatic email updates.

For more detailed information, many posts will contain links to my other blog at ElderLawBlog.info.

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