Uniform Probate Code - Advance Directives
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Monday, November 30, 2009
Monday, November 23, 2009
Cohen & Oalican discuss Elderlaw Planning and the UPC
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
ADVANCED DIRECTIVES
There are simple steps that clients can take while they are healthy to ensure that their wishes regarding their finances and health care decisions are respected in the event that they become incapacitated by illness.
A. Power of Attorney
In 1990, the Massachusetts legislature enacted the Uniform Durable Power of Attorney Act, enabling Massachusetts' citizens to execute a court recognized durable power of attorney. Since then, 27 other states, including the District of Columbia and the U.S. Virgin Islands have adopted durable power of attorney statutes based on the Uniform Act. A power of attorney is a document that allows a client to appoint an individual to act as the client's agent ("attorney-in-fact") on financial matters should the client ever become incapacitated. Given the broad authority typically granted under a power of attorney, it is obviously important that the client be confident that the agent will act in accordance with the client's wishes.
There are few formalities to creating a power of attorney. However, it makes sense to have the power of attorney notarized so that it can be used to transfer real estate if necessary. Also, as some States require that the power of attorney be witnessed, it makes sense to have witnesses so that the document would be honored in other States.
If a client wants to appoint more than one person the client can require that they must act together or permit them to act separately. If you want the agents to be able to act separately, the form must state this explicitly. However, clients should at least appoint alternates to avoid the problem of the attorney-in-fact not being available. In deciding who to appoint the client should obviously consider whether the person is trustworthy. Although, the person does not need to be a financial expert, it makes sense to appoint an agent who has some experience with financial matters and who has the common sense to hire professionals when necessary. Finally, be careful not to appoint anyone who has a history of financial problems. The pressures of debt or other financial strain may cause even the most trustworthy person to use the client’s funds for their own needs.
It is important to be sure that a client's power of attorney is "durable," meaning it remains in effect should a client become incapacitated. M.G.L. c.201B §1(a). To create a durable power of attorney the document must contain specific language referencing that the client's future disability will not effect the power of attorney. M.G.L. c. 201B §1(a). A client should also consider including gift-giving powers which would allow the client's attorney-in-fact to take advantage of estate planning strategies. Without specific language regarding gifting, future gifts made by the attorney-in-fact may be disallowed.
Most powers of attorney take effect when executed, even though the usual intent is for them to be used only in the event of the incapacity of the grantor. A client has the option of executing a "springing" power of attorney that will only become effective when the client's physician signs it stating that in his or her opinion the client has become incapacitated. However, our office has found that banks and other financial institutions don’t like springing powers of attorney as they raise questions of whether the client is really incapacitated. Or a client can enter into an escrow agreement with the lawyer who drafted the document under which they will hold the power of attorney until the client's physician tells the lawyer the client has become incapacitated. Clients always retain the option of directing their lawyer to release the power of attorney.
A client can revoke a power of attorney at any time. All the client needs to do is send a letter to the attorney-in-fact informing them that their appointment has been revoked. The client should also write any financial institution where the power of attorney might be used, putting them on notice that the document has been revoked. A conservator or guardian can also revoke a power of attorney, but the appointment of a conservator or guardian does not automaticallyrevoke a power of attorney. In fact, in Guardianship of James A. Smith, 684 N.E. 2d 613 (1997), the court held that a principal's nomination of his future guardian through a durable power of attorney mandates that the court appoint such nominated guardian in the absence of good cause or disqualification.
The attorney-in-fact owes a fiduciary duty to the person who appoints them. M.G.L. c.201B §3
(a). According to the Uniform Probate Code a fiduciary duty consists of a legal duty to: (1) account; segregate assets; make trust assets productive in accordance with a reasonably, prudent person dealing with other people's money; not delegate the responsibility to someone else; and not to self deal. U.P.C. §5-202. It is very important that the attorney-in-fact keeps good records of his or her actions under the power of attorney. Finally, the attorney-in-fact does not have any responsibility to use their own personal funds to pay bills of their principal. However, it is important that whenever the attorney-in-fact signs their name, they always clarify that they are doing so in their capacity as agent rather than individually.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 19, 2009
Cohen & Oalican discuss The UPC and guardians
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd...
Reports
In the past, courts have only been involved in keeping track of the incapacitated person’s finances. Specifically, guardians and conservators were required to file annual accountings to show how they were managing the funds. The UPC directs the probate courts to create a new system to monitor guardians. Guardians are now required to file a report within sixty days of their appointment describing the person’s condition, living arrangements, what the guardian has done on behalf of the person, plans for future care and whether the guardianship should continue. The guardian is required to then file these reports on an annual basis. It remains to be seen how the courts will monitor whether these reports are being filed.
Special Guardians
If a guardian is not meeting his or her obligations and the incapacitated person is at risk, the court has the authority to appoint a “special guardian” to take over as the patient’s guardian for up to ninety days or longer if necessary.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
The Uniform Probate Code In Court
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The Uniform Probate Code In Court
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Tuesday, November 17, 2009
Cohen & Oalican LLP, discuss guardians and conservatorship in the UPC
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Health Care Proxy vs. Guardians
The UPC clarifies that if there is a valid health care proxy in place, decisions made by the health care agent take precedence over those of a guardian. In addition, a guardian cannot revoke a health care proxy without court authority. However, a conservator can revoke a durable power of attorney and a conservator’s decisions take precedence over the attorney in fact.
Monitoring
Responsibilities
Guardians must now maintain “sufficient contact with the person to know of his or her capacities, limitations, needs, opportunities and physical and mental health”. Arguably this was true under the old guardianship statue, having it stated clearly is an important change to the statute. Although guardians now only deal with the person, if there is no conservator in place a guardian take care of the person’s personal property and commence a conservatorship proceeding if necessary to protect their property.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Health Care Proxy vs. Guardians
The UPC clarifies that if there is a valid health care proxy in place, decisions made by the health care agent take precedence over those of a guardian. In addition, a guardian cannot revoke a health care proxy without court authority. However, a conservator can revoke a durable power of attorney and a conservator’s decisions take precedence over the attorney in fact.
Monitoring
Responsibilities
Guardians must now maintain “sufficient contact with the person to know of his or her capacities, limitations, needs, opportunities and physical and mental health”. Arguably this was true under the old guardianship statue, having it stated clearly is an important change to the statute. Although guardians now only deal with the person, if there is no conservator in place a guardian take care of the person’s personal property and commence a conservatorship proceeding if necessary to protect their property.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 12, 2009
Cohen & Oalican discuss changes for Admit to Nursing Home
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Commitment Proceedings
These cases will be heard in Superior Court. They will no longer be heard in Probate Court.
Powers
Admit to Nursing Home
There is the most important change regarding powers of guardians. Under the UPC, a guardian cannot admit an incapacitated person to a nursing home without a specific finding by the court that the admission is in the person’s best interest. A health care agent would still have the authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Commitment Proceedings
These cases will be heard in Superior Court. They will no longer be heard in Probate Court.
Powers
Admit to Nursing Home
There is the most important change regarding powers of guardians. Under the UPC, a guardian cannot admit an incapacitated person to a nursing home without a specific finding by the court that the admission is in the person’s best interest. A health care agent would still have the authority to admit to a nursing home.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 9, 2009
Uniform Probate Code relating to Guardians and Conservatorship
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Priority of Appointment
The new statute directs judges to consider prioritizing the order of who should be appointed guardian or conservator. First, anyone named as agent under a durable power of attorney. Second, the spouse of the incapacitated person or a person nominated by will of a deceased spouse (or other writing of the spouse notarized and witnessed). Third a parent of the person or a person nominated in the parents will or other writing. In the case of a conservator, the court shall also consider who the protected person would like to appoint (if they have sufficient capacity to make an “intelligent choice”). The court is directed to consider this order of priority but the judge is not required to follow it if the court believes someone else would be best suited to serve as guardian or conservator.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Priority of Appointment
The new statute directs judges to consider prioritizing the order of who should be appointed guardian or conservator. First, anyone named as agent under a durable power of attorney. Second, the spouse of the incapacitated person or a person nominated by will of a deceased spouse (or other writing of the spouse notarized and witnessed). Third a parent of the person or a person nominated in the parents will or other writing. In the case of a conservator, the court shall also consider who the protected person would like to appoint (if they have sufficient capacity to make an “intelligent choice”). The court is directed to consider this order of priority but the judge is not required to follow it if the court believes someone else would be best suited to serve as guardian or conservator.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Thursday, November 5, 2009
Cohen & Oalican discuss Temporary Guardians under Uniform Probate Code
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Court Procedures
Temporary Guardians
Previously, it was necessary to provide only three days of notice to the incapacitated person and their heirs-at-law. Under the new rules anyone seeking temporary appointment of a guardian or conservator must provide seven days of notice. As always, in a true emergency, the judge has discretion to waive the notice requirements and appoint a guardian or conservator immediately.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Court Procedures
Temporary Guardians
Previously, it was necessary to provide only three days of notice to the incapacitated person and their heirs-at-law. Under the new rules anyone seeking temporary appointment of a guardian or conservator must provide seven days of notice. As always, in a true emergency, the judge has discretion to waive the notice requirements and appoint a guardian or conservator immediately.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Wednesday, November 4, 2009
Cohen & Oalican, LLP, Elderlaw Attorneys answer - Who do you give notice when seeking guardianship or conservatorship
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code cont'd
Court Procedures
Notice
Whoever is seeking guardianship or conservatorship has to give notice of the proceeding to certain individuals. Previously, the alleged incapacitated person got notice, along with their spouse and children, or if none, parents, brothers and sisters. Under the UPC, the courts now require that additional people receive notice: anyone appointed under a power of attorney or health care proxy; anyone who has been living with the individual or anyone else named in the petition.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code cont'd
Court Procedures
Notice
Whoever is seeking guardianship or conservatorship has to give notice of the proceeding to certain individuals. Previously, the alleged incapacitated person got notice, along with their spouse and children, or if none, parents, brothers and sisters. Under the UPC, the courts now require that additional people receive notice: anyone appointed under a power of attorney or health care proxy; anyone who has been living with the individual or anyone else named in the petition.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Monday, November 2, 2009
Medicaid MassHealth and the Uniform Probate Code
Cohen & Oalican, LLP; Medicaid, MassHealth and Elderlaw Attorneys in Boston, Andover, Raynham.
Welcome to the Uniform Probate Code
Court Procedures ( cont'd)
Where to File
The choice of which court to file a guardianship/conservatorship has been expanded to include in cases where a parent or spouse has nominated a guardian in their will, the county where the will was our could have been filed. This is in addition to the county where the individual lives. The courts are now directed to appoint an attorney if it determines of the person may be inadequately represented or if the person or someone on their behalf requests that an attorney be appointed.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Welcome to the Uniform Probate Code
Court Procedures ( cont'd)
Where to File
The choice of which court to file a guardianship/conservatorship has been expanded to include in cases where a parent or spouse has nominated a guardian in their will, the county where the will was our could have been filed. This is in addition to the county where the individual lives. The courts are now directed to appoint an attorney if it determines of the person may be inadequately represented or if the person or someone on their behalf requests that an attorney be appointed.
This series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
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