Planning for Life

By Harry S. Margolis

As we have discussed before, the number of Covid-19 deaths in nursing homes has brought to light the ongoing crisis in how we care for our ailing seniors. In short, the problem is that we've always been trying to do so on the cheap through the Medicaid (MassHealth in Massachusetts) program. As a result, caregivers in nursing homes are underpaid and most facilities are understaffed.

Low Pay Affects Quality of Care

A recent report, which is summarized in The New York Times, describes how the low pay and stress leads to turnover of nursing home staff. That turnover affects care both because it means that most caregivers are inexperienced and they and the nursing home residents don't know one another. This can be especially confusing for those residents who suffer from dementia.

By Harry S. Margolis

If you have a nominee realty trust, make sure you also have a copy of the schedule of beneficiaries. We can't tell you how many times we've found these schedules missing, meaning it's not clear who owns the property.

What is a Nominee Realty Trust?

To understand what this is all about, you need to know something about nominee realty trusts. These are devices used almost exclusively in Massachusetts to hold title to real estate through which the trustees act as agents for the beneficial owners whose names are not listed on the deed. They are also not listed in the trust document; instead, they are listed on a separate schedule of beneficiaries which is not recorded at the registry of deeds (which is why they often go missing).

By Harry S. Margolis

A recent Massachusetts Appeals Court case clarifies the law around the administration of antipsychotic medications to individuals under guardianship pursuant to Rogers determinations. In accordance with the Rogers case, guardians may order the administration of antipsychotic drugs only after a so-called "substituted judgment" determination that the person under guardianship, were she competent, would agree to take the medication.

In other words, the question is not what is in the individual's best interest. Instead, the goal of the proceeding is to preserve the individual's right to self-determination and in effect to make her own health care decisions.

By Harry S. Margolis

A recent Texas case, Osche v. Osche, shows the benefit of using names when drafting rather than terms such as "spouse." In 2008, Amanda Hurst Ochse created an irrevocable trust for the benefit of her son, William W. Ochse III, his children, and his "spouse." For almost 30 years, he had been married to Cynthia Cadwallader Ochse. However, they got divorced in 2012 and in 2015, William married Carol Osche.

By Harry S. Margolis

As described in an article in Next Avenue, nursing homes have evolved over the years from alms houses for the poor to today's skilled nursing facilities. At the same time, they've also evolved from homelike settings to be more like hospitals. At the same time, in recent decades, we've seen the huge growth of the assisted living industry which attempts to be more homelike, often aspirational, with luxurious common areas.

By Harry S. Margolis

Last week, I wrote about the reasons I disagree with President Biden's proposal to eliminate the step-up in basis. Here I'll discuss some other tax proposals he has which I can support.

By Harry S. Margolis

As a candidate, President Joe Biden proposed getting rid of the "step-up" in basis. This is a provision that erases capital gains upon the death of the owner. Here's how it works:

What's a Step-Up in Basis?

Let's say you bought some stock for $20,000 and today it's worth $50,000. If you were to sell the shares for this amount, you would have to pay tax on capital gains of $30,000. The purchase price is the stock's "basis." The gain is the difference between the proceeds and the basis.

By Harry S. Margolis

Britney Spears is 39 years old and capable of earning tens of millions of dollars a year. Yet, as exposed in the recent New York Times documentary, "Framing Britney Spears," against her wishes, her father, James Spears, has served as her conservator for the past 13 years. At a February 11th court hearing at Los Angeles Superior Court, Judge Brenda Penny continued the conservatorship but confirmed the addition of Bessemer Trust as co-conservator.

By Harry S. Margolis

In Steere v. Steere (Mass. Sup. Ct., Dukes CA 2018-44, December 16, 2020), Superior Court judge Paul D. Wilson finds that a nephew and his wife used undue influence to defraud his 88-year-old aunt from her house in Oak Bluffs on Martha's Vineyard.

How It Went Down

Gloria Steere had lived in her house in Oak Bluffs since 1982. Despite having been in charge of accounting at Martha's Vineyard Insurance for 30 years, in 2012 and 2013, she became the victim of scammers and lost her life savings of approximately $800,000.