Planning for Life

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

Posted by Harry S. Margolis on April 16, 2019

By Harry S. Margolis

Incapacity-undue-influence-upcoming-webinar-Wellesley

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

4 Steps to Protect Your Digital Estate

Posted by Harry S. Margolis on March 26, 2019

By Harry S. Margolis

4 steps-to-protecting-digital-estate - margolis-and-bloom

Don't all the conveniences of life sometimes seem just to make life more complicated? This is nowhere more true than with respect to the internet. Whether or not we spend half our lives responding to devices, we all transact a lot of our daily business on line, buying stuff on Amazon, paying our bills through on-line bank programs, stocking up and using airline miles, reallocating our investments, saving photos, watching movies, or planning trips. And that's not even mentioning social media, such as Facebook, Instagram or LinkedIn, or dating sites.

So, what happens to all your connections and information if you become disabled or die? Who has access? Who do you want to have access, to which sites? For instance, you may want your children to be able to access your financial accounts, but not your dating site.

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Topics: Estate Planning, Probate Estate Administration

This Isn’t What My Stepfather Would Have Wanted

Posted by Kerry Reilly on March 21, 2019

By Kerry Reilly

losing-home-because-of-no-will-margolis-and-bloom-call-nowWith the growth of blended families, having an estate plan in place becomes even more important.  On February 7, 2019, The Boston Globe published an article entitled “A patriarch leaves no will and the home he meant for his Cambridge family may be lost,” which illustrates in heartbreaking detail what happens when we don’t have the right plan in place.

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Topics: Estate Planning, will in massachusetts, health care proxy

Where Should You Live as You Age?

Posted by Harry S. Margolis on March 19, 2019

By Harry S. Margolis

Margolis-and-Bloom-call-now-to-help-with-your-estate-planning-Wellesley

Most people don't move when they retire, instead staying where they have lived all their lives and where they have the strongest personal and family connections. So, they must either hope that their towns and cities are good places to age in terms of the services they provide or work actively to improve those services. In my own town of Brookline, the Brookline Community Aging Network takes the latter approach, working actively "to ensure that older Brookline residents remain a vital part of the town's social, cultural, and civic life."

Others choose to move after they retire, whether full-time or for part of the year. They may move for a better climate, often during the winter, for a lower cost of living, or to be near family members, especially grandchildren. But if you can move anywhere in the world, where should you move?

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Topics: aging

What Happens in Massachusetts if You Don't have a Health Care Proxy?

Posted by Harry S. Margolis on March 12, 2019

By Harry S. Margolis

Margolis-and-Bloom-Wellesley-Health-Care-Proxy

As long as we are 18 or over and have our wits together, we all have the right to make our own health care decisions. But what happens when we become incapacitated, whether temporarily or permanently, and cannot make such decisions?

Then, legally, only a court-appointed guardian or an agent under a health care proxy can make decisions for us. In an emergency, medical providers can take measures to keep us alive, but once the emergency has passed no one has the right to step in and make decisions in the absence of a health care proxy or guardianship appointment.

 

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Topics: health-care decision making, health care proxy

Lawyer for the Situation or for the Family

Posted by Harry S. Margolis on March 5, 2019

By Harry S. Margolis

Wellesley-lawyer-fair-representation-Margolis-and-Bloom

Lawyers are trained, and legal ethics rules require, that they represent a single client or more than one client only if there's absolutely no differences in their interests with respect to the legal matter at hand. In addition, lawyers must do their best to represent the interests and goals of clients with diminished capacity.

The concept of zealous advocacy for a single client was expressed early in the 19th century by Lord Brougham who said "an advocate, in discharge of his duty, knows but one person in all the world, and that person is his client."

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Topics: Legal profession, ethical rules

Don't Let the Perfect Plan Get in the Way of a Good One

Posted by Harry S. Margolis on February 26, 2019

By Harry S. Margolis

iStock-954681460

Some of our most thoughtful clients have the most trouble completing their estate plans. One client in particular continues to haunt me. A successful architect and city planner, a number of his children went into the "helping" professions, fields in which they would never reach his level of financial success. While well off, once divided into equal shares for his four children, whatever he would leave them could not on its own ensure each child's financial security.

My client struggled between his wish to help his children lead more comfortable lives and his concern that their inheritance act as a financial bulwark against their possible future needs for extraordinary health care or retirement. We tried to find the right balance to do some of each -- providing each with some direct inheritance while holding some money in reserve through a trust to provide for potential future needs. But it was clear that the funds were insufficient to meet both goals fully.

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Topics: Estate Planning

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