Frequently asked questions
What is Elder Law?
Elder Law is the area of law that focuses on an individual's legal needs and concerns as he or she grows older. A major focus of Elder Law is on incapacity planning, which is planning for what will happen when a client either loses the ability to make decisions for himself or herself, or simply needs more help with decision-making.
Incapacity planning is something everyone should do. Incapacity planning can be as simple as making a health care proxy and a durable power of attorney. Elder Law attorneys also help clients create an estate plan and prepare estate planning documents such as wills, trusts, and deeds.
Most Elder Law attorneys assist their clients with obtaining Medicaid (MassHealth), Medicare, and other public benefits. They incorporate public benefits planning into incapacity planning.
What is Special Needs Law?
Special Needs Law focuses on the needs and concerns of individuals with special needs and disabilities. Special Needs Law includes incapacity planning, guardianship, conservatorship, estate planning and educational advocacy.
What is a Will and how does it work?
A Will is the legal document that allows you to gift your property after you die. The most important thing to remember is that you can only gift what is yours alone. The ownership of property that is titled jointly -- for example, a bank account that is owned by you and your spouse -- cannot be gifted by a Will.
Typically, the job of the Personal Representative (formerly called Executor), is to claim the assets that are titled in your name after you die. My job is to help the Personal Representative get appointed by the Probate and Family Court so that she or he can collect the assets of the estate, pay the debts of the estate, and then distribute the assets of the estate to the estate beneficiaries.
What is probate?
Probate is the legal process by which the court grants someone (usually, the person named as Personal Representative in your Will) the legal authority to claim the assets titled in your name after you have died. Probate is only used to obtain the authority to claim assets titled in your name, not assets that are owned jointly or owned by a trust.
The person you name as Personal Representative can’t go to your bank with a copy of your Will and claim your bank account. He or she needs the authority of the probate court to claim your assets. The probate process in Massachusetts is simple, and once the probate court approves the paperwork, your Personal Representative has legal authority to claim your assets and follow the instructions in your Will.
I need to make a Will. How do I prepare for my first appointment?
Many people don’t realize that making a Will, or an estate plan in general, is about making decisions about what they want. The best way to prepare for your first appointment is to think about what you want ahead of time. Regarding your Will, bring the names, addresses, and telephone numbers of the individuals or organizations to whom you want to bequeath your assets.
You may want to consider the following:
Who do you want to appoint as Personal Representative of your Will? If your wealth is invested in businesses like an LLC, you might want to consider using an attorney as your Personal Representative instead of one of your children.
Do you have a special heirloom, like a musical instrument or a painting, that you want to go to a specific person?
Do you want to make a monetary gift to a specific person, like a grandchild?
One of my jobs, as a lawyer, is to educate my clients about what their options are, as well as to help them achieve their goals. If you already have an idea about what you want, then you are making the most of our time together.
Do you want to direct your Personal Representative to sell your real estate? Or perhaps to allow one of your children to purchase your real estate for less than fair market value?
What is a health care proxy and how does it work?
A health care proxy is the legal document used to appoint someone you trust to make health care decisions for you after your doctor has determined that you’re not able to make those decisions for yourself. A health care proxy must be invoked by your doctor; it doesn’t take effect if you can make health care decisions on your own. Usually, you will have a primary agent and then one or two alternate agents. You need to have the contact information for your health care agents, including cell phone numbers and addresses.
In Massachusetts, without a health care proxy, your loved ones or the hospital treating you, would have to petition the county probate court to appoint a guardian who can make health care decisions on your behalf. This is an expensive and cumbersome process, which can nearly always be avoided if you have a health care proxy in place.
The Massachusetts health care proxy statute states that a photocopy of the health care proxy has the same effect as the original, so you can give your doctors a copy and keep your original at home.
What is a durable power of attorney and how does it work?
A durable power of attorney appoints an individual, called an attorney in fact, to act as your agent and to make decisions on your behalf.
A durable power of attorney may be used in business transactions as well as for personal use. You do not need to be unable to make decisions in order to appoint an agent to help you. Clients often execute a power of attorney when they want their child to help them manage their bills. You must trust the person you are appointing to act on your behalf, without reservation. A durable power of attorney is a very powerful instrument.
However, without a durable power of attorney in place, your loved ones would have to petition the county probate court to appoint a conservator who could manage your assets on your behalf. This is a very expensive and cumbersome process which is easily avoided by having a durable power of attorney in place. A durable power of attorney is an essential part of incapacity planning.
What is a trust and how does it work?
A trust is a method of holding property. The “trust instrument” is the document that contains the terms of the trust. Like a corporation or a limited liability company, a trust is an entity. Sometimes, a trust is used to invest and manage property to make a profit. Sometimes, a trust is used simply to avoid the probate procedure discussed above.
A trust is created when a person, called the grantor, gives his or her property to another person, called the trustee. The trustee holds the grantor’s property on the grantor’s behalf. How much authority does the trustee have? It depends. The trust instrument lists the powers of the trustee but Massachusetts law also contains some mandatory rules for trust administration.
Can you have a trust and have the grantor and the trustee be the same person? Yes, you can make a trust and also serve as trustee over the trust assets. Whether a trust is an appropriate component of someone’s estate and incapacity plan is something we discuss with clients on a case-by-case basis.