Superior Court Upholds MassHealth Applicant's Sale of Property to Daughter:

Part 2
A Summary of Clark v. Dehner

Superior Court Decision

The Superior Court overturned MassHealth's decision, finding that the transaction between Susan and Michelle was valid and should not be considered a disqualifying transfer. The Court determined that the transaction was for fair market value, and that the promissory note satisfied all of the regulations requirements, in that it was actuarially sound, provided for equal payments, and prohibited cancellation at Susan's death. The Court disagreed with MassHealth's determination that the note was not reasonably enforceable because the transaction had occurred between family members. The Court acknowledged that there was no guarantee that Susan would sue Michelle in the event that she defaulted on the note. However, the Court noted that it was inappropriate of MassHealth to assume that Susan would not seek to enforce the note by all available means.

Conclusion

Practitioners and clients should be encouraged by the Court's decision in Clark. The decision validates transactions between family members using promissory notes, which can be a valuable last-minute planning option for clients needing immediate long-term care in a nursing home. Clark also offers practitioners with a creative planning opportunity to cure disqualifying transfers into irrevocable trusts, while preserving the value of the transferred asset for the family. The decision is also an important step in reversing MassHealth's trend of dissallowing long-term care planning techniques between family members set into motion by the implementation of the DRA. However, even in light of this favorable decision, practitioners are urged to be cautious and draft promissory notes and related agreements between family members in strict accordance with MassHealth's regulations.

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Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Review the Deed to Your Home - You Might be Surprised What it Says!

Did you know that how you own your home during your life determines who receives it upon your death? There are several ways a person can own a home. Therefore, there are different possible outcomes concerning who receives that house upon your death.

For most of our clients, the home is their most valuable asset. So, its often a big surprise when folks realize the deed will override a conflicting bequest in their will regarding the disposition of real estate. If you’re the only owner on the deed (meaning there are no other person identified as owners with you), then the real estate is a probate asset. This means that your will determines who receives that house when die. In that case, make certain your will represents your current wishes. Otherwise, that house could pass to that nephew you liked twenty years ago, but can’t stand any longer. By the way, if you don’t have a will, the state in which you live has one for you. That’s called “intestate” law and it’s a set of default rules about the who gets your property.

If you own a home with another person, the deed gets much more complicated. This is because deeds are chock full of old legal terms that can confound a homeowner. A good elder law attorney can explain the implications of the deed. However, to get a head start, look for certain terms in that deed.

Here’s a few critical terms to look for:

“Joint Tenants” - that means if you die, your share of the house automatically passes to the surviving other owners. In that case, it doesn’t matter what your will says, a joint deed determines where the house goes, not your will. One benefit of joint ownership is that it avoids probate. It’s a convenient way to pass on real estate as long as the joint owners are the persons you wish to receive your share of the property.

“Tenants-in-Common” is a deed which defers to your will. If you own your home as “tenants-in-common” with two other people and you die, your one-third of the house passes according to the terms of your will and not automatically to the other two owners of the house. The benefit of this type of ownership is that you can change who receives your share simply by signing a new will. The downside is that will must be probated with court to pass your interest in the real estate interest to your heirs.


Cohen & Oalican, LLP provide a full spectrum of services for the elderly, for disabled adults, and for the families.

Presentation on Uniform Probate Code Terminology

The Uniform Probate Code

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When is a guardianship or conservatorship appropriate?

Guardianship or conservatorship is appropriate when impaired judgment or capacity poses a major threat to a person's welfare. A medical evaluation by a licensed physician is necessary to establish the proposed ward's condition. However, only a court can determine the need for a guardian or conservator.


This is a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.

New Series Guardianship and Conservatorships

Welcome everyone that has been following our mini series of articles on issues on elder law for our clients in the Boston and Greater Boston Area.

We are Cohen and Oalican, LLP, Elder Law Attorneys, specializing in protecting the legal rights and financial concerns of our clients as they age and prepare for retirement and succession.

Enjoy this next series on the topic of Guardianship and Conservatorships.

What are Guardianships and Conservatorships?

Guardianship and conservatorship are legal relationships whereby the Probate Court gives one person (the guardian or conservator) the power to make decisions for another (the ward). As of July 1, 2009, the probate courts have begun distinguishing between guardians and conservators. Now, guardians only have authority over personal and medical decisions and conservators only have authority over financial decision. A guardian or conservator may be appointed when a Probate Court determines that an individual is incapacitated to such degree that they are unable to care for herself or her assets.



This is the first in a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.