Planning for Life

Don't Ask a Neuropsychologist About Legal Capacity

Posted by Harry S. Margolis on November 13, 2018

By Harry S. Margolis

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In it's hopeful article on "Leading an Active Life With a Diagnosis of Dementia," The New York Times correctly describes some of the legal documents we all should have in case we lose cognitive function, including financial powers of attorney and health care directives. But in raising the question of the individual's legal capacity to sign the documents, it suggests that  a clinical evaluation is necessary "to determine whether the client still has the decision-making skills" to execute legal documents. The article quotes a neuropsychologist as saying that "[e]ven mildly impaired persons usually need to be carefully evaluated  before signing legal documents."

I disagree. We almost never take this step.

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Topics: incapacity

Benson and Margolis named Super Lawyers, Again

Posted by Beth Cohen King on November 7, 2018

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We are pleased that Harry S. Margolis and Rebecca J. Benson have been named New England 2018 Super Lawyers for Elder Law, among just 26 throughout New England and 15 in Massachusetts. And, yes, they did wear their capes for Halloween.

See Harry S. Margolis's profile on Super Lawyers.

See Rebecca J. Benson's profile on Super Lawyers.

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Topics: super lawyers, elder law

UBS as IRA Custodian has Fiduciary Duty to Beneficiary

Posted by Alison Blum on November 7, 2018

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In UBS Financial Services, Inc. v. Donna M. Aliberti (Mass. App. No. 17-P-1169, October 4, 2018), the Massachusetts Appeals Court concluded that a custodian holding an individual retirement account, or IRA, has contractual and fiduciary duties to the beneficiaries, reversing the dismissal of case brought against the company for failure to distribute IRA proceeds.

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Topics: trustee, Estate Planning

How Will We House an Aging Population?

Posted by Harry S. Margolis on November 6, 2018

By Harry S. Margolis

Harvard's Joint Center for Housing Studies has published a report on the challenges of housing our aging population over the next two decades. harvard_jchs_housing_growing_population_cover[1]

The Coming Crisis

Here are some of its findings:

  • The over-65 population will increase from 48 million today to 79 million in 2035.
  • The over-80 population will double from 12 to 24 million.
  • By 2035, one in five Americans will be 65 or over, up from one in seven today.
  • The Joint Center projects that by 2035, 17 million older households will include someone with a mobility disability, 12 million needing with a self-care disability and 27 million with a household activity disability.
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Topics: home care, seniors

Benson and D'Agostino Speak at ALCA - New England Conference

Posted by Beth Cohen King on November 5, 2018

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On October 29th, Rebecca J. Benson and Patricia C. D'Agostino were panel experts in the break out session called Optimizing the Interdisciplinary Team: An Advanced Case Study Workshop  at the ALCA 2018 New England Chapter conference. Led by the Moderator, Jennifer Pilcher, founder and owner of Clear Guidancethe panel included experts in estate planning, care management, home care, psychiatry and special care units in assisted living facilities.  The goal of the session was to learn creative care planning techniques and strategies to maximize how one collaborates with elder care colleagues.

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Topics: home care, Estate Planning, elder care, elder law

Maine to Vote on Universal Home Care Ballot Initiative

Posted by Harry S. Margolis on October 30, 2018

By Harry S. Margolis

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Question 1 on Maine's ballot next week, An Act to Establish Universal Home Care for Seniors and Persons with Disabilities, would enact universal free home care for seniors and others with disabilities funded by a 3.8 percent tax on income above $128,400 (in 2018) the threshold over which workers and employers no longer have to pay into the Social Security system. In other words, incomes below that level would be exempt from the tax.

Estimates of how much the tax would raise range from just under $200 million to just over $300 million a year. Only 3.4 percent of Maine taxpayers would be subject to the new tax.

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Topics: home care

Older Couple Ordered to Complete Sale of Nahant Home Despite Claim of Incapacity

Posted by Harry S. Margolis on October 23, 2018

By Harry S. Margolis

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In early spring of this year, George and Maureen Burke, a couple in their 70s, agreed to sell their shoreline home in Nahant to Christopher Whitlock and Mary Flannery for $1.075. Soon afterwards, they had cold feet and their attorney sent Whitlock and Flannery's attorney a letter declaring the sale agreement to be null and void because (a) the Burkes' real estate agent had coerced them to sign, (b) Mrs. Burke "was on several medications at the time of signing, and (c) she didn't 'knowingly, voluntarily, or intelligently sign' the Agreement."

Whitlock and Flannery brought suit to enforce the agreement. In Whitlock and Flannery v. Burke and Burke (Essex Sup. Ct. Misc 18-000298, July 19, 2018) the Court finds that Mrs. Burke did understand the agreement and ordered that the Burkes carry out their obligations to complete the sale.

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Topics: incapacity

Protecting the Rights of Massachusetts Voters with Disabilities

Posted by Rebecca J Benson on October 19, 2018

By Rebecca J. Benson

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About 35 million eligible voters in the U.S. have a disability – close to one in six. Although voting is one of the most fundamental rights granted to American citizens, nearly a third of voters with disabilities reported facing obstacles to voting in the 2012 election, including difficulties with physical access to the polling place, reading the ballot or operating the voting machine.

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Topics: disability, voting rights

Strategies for a Full Life with Dementia

Posted by Harry S. Margolis on October 16, 2018

By Harry S. Margolis

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A recent article in The New York Times offered some hope for those diagnosed with Alzheimer's disease and other forms of dementia. Entitled "Leading an Active Life with a Diagnosis of Dementia," the article featured a woman, Laurie Scherrer, diagnosed with early onset dementia at age 55 who continues to lead an active life.

Steps Toward an Active Life with Dementia

Here are a few of the steps Ms. Scherrer took:

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Topics: dementia, Alzheimer's disease, incapacity

Why the Governor's Council Should be Abolished

Posted by Harry S. Margolis on October 9, 2018

By Harry S. Margolis

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Do you know what the Governor's Council does and who serves as your Governor's Councillor? If not, don't feel bad; most other people don't either.That's why it should be abolished. The elections cannot be democratic if no one knows what they're voting for.

As explained in a recent article on the topic in Massachusetts Lawyers Weekly, I'm a convert to this position.

“It’s really not very democratic,” Margolis says of the Governor’s Council. “We say the people ought to have a say in who serves as judges, but I don’t think they really do.”

What is the Governor's Council?

The Governor's Council, a survival from colonial times, has eight elected members. Its main role today is to vet nominees for judicial appointments. It also votes on nominees to the parole board as well as on pardons and commutations.

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