Planning for Life

Harry S. Margolis

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6 Rules of Thumb in Choosing Your Agent Under Your Durable Power of Attorney

Posted by Harry S. Margolis on June 25, 2019

By Harry S. Margolis

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Our clients often have to make difficult choices when deciding who to name as their agent or agents on their durable powers of attorney. Married clients usually name each other and, if they have children, one or more as alternates. Unmarried clients or married clients whose spouses have dementia usually name children, if they have them.

But what if you don't have children, or you don't have children who you can trust with this responsibility? Or what if you have several children, how do you choose among them? Will picking one child over another create resentment and cause friction among your children? On the other hand, would naming several create the opportunity for continuing conflicts.

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Topics: durable power of attorney

5 Reasons to Use a Pooled Trust for MassHealth

Posted by Harry S. Margolis on June 18, 2019

By Harry S. Margolis

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A recent case in our office highlighted the benefits of using a pooled trust when spending down for MassHealth eligibility. Our client, who has Lou Gehrig's disease, paid privately for his care until he ran down his savings. When we met with his daughter, the client still had about $12,000 in the bank. We explained the option of transferring this money to a pooled trust for her father's benefit as a reserve for her or whatever her father may need.

Under the MassHealth rules, there's no transfer penalty for money deposited in a pooled trust for the benefit of the applicant for coverage.

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Topics: Medicaid planning trust, pooled disability trust

D'Agostino Wins MassHealth Trust Case

Posted by Harry S. Margolis on June 10, 2019

By Harry S. Margolis

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The MassHealth Board of Appeals recently decided a case involving real estate held by a trust in favor of Patricia D'Agostino's client, a current nursing home resident who had sought coverage beginning in December 2017. The trust had been created by the client's now-deceased husband back in 1995 and held two vacation rental properties.

The Trust in Question

At issue were two provisions in the trust. The first gave the client the right to use and occupy the vacation properties and to receive the net rental income. The second permitted the dissolution of the trust upon agreement of all the beneficiaries and the sale of the trust property with the proceeds being paid to the beneficiaries listed on "the then current schedule of beneficiaries," the couple's children.

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Topics: trusts, MassHealth, vacation house

Will the Vacation Home Keep the Family Together or Tear it Apart?

Posted by Harry S. Margolis on May 14, 2019

By Harry S. Margolis

estate-planning-2nd-homes-margolis-and-bloom

Ahh, the vacation house.

The locus of so many family memories. The place where everyone can get away from their busy lives, relax and spend time with other family members.

Or.

The focus of family disputes over maintenance, finances, and use.

How can you assure the former and avoid the latter?

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Topics: vacation house

Should Seniors Downsize or Age in Place?

Posted by Harry S. Margolis on May 7, 2019

By Harry S. Margolis

seniors-downsizing-estate planning-margolis-and-bloom

While everyone's desires and circumstances are different, most people upon retirement or later face the issue of whether to stay in their homes or move, whether to a smaller house or apartment, to a 55 and over community, or to get out of northern winters. Some people want relief from the headaches and expense of maintaining a house, not to mention the lawn in front, while others don't want to leave the home or community where they've lived for decades and raised their families.

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Topics: the accessible home, housing policy ,, home care

7 Ways to Divvy Up Your Stuff

Posted by Harry S. Margolis on April 23, 2019

By Harry S. Margolis

estate planning - soft goods -Margolis & Bloom

When you die, your possessions will go to your heirs. Savings and investments are easy to divide up since they can be turned into cash. While real estate is more difficult, it can be turned into cash by selling it or co-owners can share it. But the most difficult items to divvy up are your personal possessions -- silverware, dishes, artwork, furniture, tools, jewelry -- that are unique rather than fungible. In legal speak these are known as "tangible personal property" and  can become the focus of family feuds, often one or more children claiming that a parent had promised them a particular item.

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Topics: will in massachusetts, will, tangible personal property

What is the Standard for Incapacity to Sign a Legal Document?

Posted by Harry S. Margolis on April 16, 2019

By Harry S. Margolis

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I recently wrote about the standards for determining undue influence and questioning the value of consulting with a neuropsychologist to determine capacity to sign a legal document. But what is the standard for incapacity?

The answer is that it's a moving target, often depending on the situation and the document to be signed. Further, in the absence of indications of undue influence the attorney should be inclined to assist a client with questionable capacity to execute estate planning documents rather than refusing to assist the client.

Testamentary Capacity

Here's the legal standard for "testamentary" capacity, the capacity to sign a will:

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Topics: incapacity, undue influence, legal protection

Trustee Beware -- Fee Petition Turned Down

Posted by Harry S. Margolis on April 9, 2019

Photo by Sam Mathews on UnsplashBy Harry S. Margolis

Unlike a conservatorship, most trusts don't require court approval for a trustee to be paid. But that can be different where the trustee is court-appointed. In a California case, Thomas Thorpe v. Audelith Jenivee Reed, Trustee, et al. (Ct. of App, 6th App., CA H037330, Dec. 13, 2012),  the court denied the petition of a court-appointed trustee of a special needs trust for compensation.

Danny, the beneficiary of the trust received compensation for injuries he suffered while attending the Burning Man festival in 1996 when he was 21 years old and a drunken driver drove through his tent.  Danny's mother was named as trustee of the trust.

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Topics: trusts, special needs planning

7 Reasons to Use a Professional Trustee

Posted by Harry S. Margolis on April 9, 2019

By Harry S. Margolis

Professional trustee benefits estate planning

Most people who create trusts for estate planning and asset protection purposes serve as their own trustees during life and then prefer family members to step in if they become incapacitated or to serve for trusts that continue after the grantor's death. Family member trustees keep things private and save money since professional trustees, whether a lawyer, a bank or a trust company, usually charge charge fees of 1.0% to 1.2% of the trust assets per year, often a higher percentage for smaller trusts -- under $1 million -- and a lower percentage for larger ones -- over $2 million.

The use of a professional trustee also means a loss of control for family members and sometimes a loss of continuity when the trust officers for a larger bank or trust company change over time. In addition, if an individual attorney is serving as trustee, there's a risk of a loss of continuity or a gap if the trustee falls ill, passes away, or retires.

Benefits of Professional Trustees

So, with all of these downsides of using a professional trustee, what are the advantages? And how can you mitigate some of the potential drawbacks?

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Topics: trustee

The Facts on Alzheimer's Disease and Other Forms of Dementia

Posted by Harry S. Margolis on April 2, 2019

By Harry S. Margolis

The Alzheimer's Association has released its annual report, Alzheimer's Disease Facts and Figures, which as usual contains some daunting figures, especially as Baby Boomers age and we hear the latest news story of an unsuccessful drug trial. Here are some of the results:

  • 5.8 million Americans have been diagnosed with Alzheimer's disease, which is projected to increase to 14 million by 2050.
  • The annual cost of the illness is $290 billion, which is projected to rise to $1 trillion by 2050 (in current dollars). Medicare and Medicaid currently pay $195 billion of this cost
  • More than 16 million Americans provide unpaid care to family members with Alzheimer's or other forms of dementia providing an estimated 18.5 billion hours of care valued at $234 billion.
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Topics: dementia, MassHealth, Alzheimer's disease

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