Cohen & Oalican, LLP discuss: PROTECTING YOUR HOUSE FROM THE COST OF NURSING HOME CARE Part 5 of 7
Life Estates
Another option to protect your house is with a Life Estate deed. With a Life Estate deed a client is typically giving away their house to their children but they are retaining certain rights of ownership over the property. Most commonly, clients keep the right to live in the house and the rights to rental income. They also still have an obligation to pay the house expenses. However, the house cannot be sold or mortgaged without everyone’s consent. The parents retained interest in the house is called a Life Estate. A child’s right to receive the property at death is called a remainder interest. Because a Life Estate deed passes automatically at death outside of probate, a Life Estate deed avoids Medicaid’s claim at death. One drawback to a Life Estate deed is that the house will only be protected as long as it is not sold until after the death of the Medicaid recipient. If the house is sold during the person’s life, a portion (this value is based on Medicaid’s actuarial tables) of the proceeds will pass to the Medicaid recipient and the funds will be taken by Medicaid. On the other hand, if the house is held in an irrevocable trust, all of the proceeds from the sale stay in the trust and remain protected regardless of when the house is sold.
Consult with one of the attorneys at the offices of Cohen & Oalican, LLP for Mediciad planning.
This has been Part 5 in a series of 7, brought to you by Cohen & Oalican LLP, Elder Law Attorneys Boston, Raynham, Andover
Showing posts with label Probate. Show all posts
Showing posts with label Probate. Show all posts
Thursday, June 3, 2010
Sunday, December 6, 2009
UPC and Health Care Proxy/Living Will
Welcome to the final article in the series covering Uniform Probate Code
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
B. Health Care Proxy/Living Will
A health care proxy is a document by which a client (the principal) may give another person (the agent) the authority to make health care decisions should the principal become incapacitated. In contrast to the proxy, a living will is a client's written statement as to specific treatments the client would or would not want initialed. M.G.L. c.201D §2. On December 18, 1990, in response to the U.S. Supreme Court decision of Cruzan v. Missouri Department of Health, 497 U.S. 261 (1990), Massachusetts passed the Health Care Proxy statute providing that "[e]very competent adult shall have a right to appoint a health care agent by executing a health care proxy." M.G.L. c.201D, §2. In the Cruzan decision, the U.S. Supreme Court respected the intentions of Nancy Cruzan who prior to an accident that left her in a vegetative state, had written her specific intention not to be kept alive by artificial feeding. Some form of living will or health care proxy statute exists in nearly every state, including the District of Columbia.
Health care proxies are vitally important when a patient is incapable of giving instructions to medical professionals, especially if the patient is being kept alive by life support systems that is not consistent with the patient's values. The proxy will permit the agent to order the withdrawal of such life support. A proxy is also important if there should be a disagreement among family members since it appoints one individual to represent the patient. Alternates should be named in the event the first person appointed cannot serve for any reason. To avoid potential conflicts of interest, no operator, administrator, or employee of a facility that is providing care for the principal may serve as a health care agent, unless he or she is related to the principal by blood, marriage, or adoption. M.G.L. c.201D §3.
It is best that the health care proxy also include a medical directive giving the principal's agent guidance on what the principal wishes would be done in a given situation. More capacity is required to give medical directives than is required simply to delegate decision-making authority. These medical directives enable a principal to ensure that his or her own wishes regarding treatment decisions are respected. If the principal's family ever has to make these difficult decisions, their burden will be eased by the expression of a principal's wishes provided by a directive.
According to M.G.L. c.201D §2, health care proxies must be in writing and signed by a legally competent adult. Two witnesses must be present to attest that the principal appeared to be at least 18 years old, of sound mind, and under no undue influence. Unlike a typical power of attorney which is immediately effective, a health care agent is only authorized to make decisions when an attending physician has certified in the medical record that the principal can no longer give their informed consent.
In order to ensure that the principal's wishes are respected regarding health care decisions, it is important that they have a candid conversation with their agent to make sure their values are understood. In addition, copies of the health care proxy should be kept with the principal's personal records and a physician should have one filed with the patient's medical records.
The role of the health care proxy continues to be clarified. Specifically, since Rogers v. Commissioner of the Department of Mental Health, the use of health care proxies has become controversial in the administration of antipsychotic medication. The Rogers court ruled that if a patient is not capable of giving their informed consent, health care professionals cannot administer antipsychotic medication without first obtaining court authority to do so. This rules applies even if the patient was accepting the medication.
More recently, the Massachusetts Supreme Judicial Court held that the Massachusetts health care proxy statute allows an agent to commit a principal to a mental health facility providing the principal does not object. (Cohen v. Bolduc, SJC 08554, 1/11/02)
This case also implies that a health care agent has authority to assent to any medical treatment for his or her principal, including treatment with antipsychotic medication. However, if the principal is objecting to the treatment, this is taken as a revocation of the proxy regarding that treatment. In that event, the agent would have to obtain court authority.
In addition, according to a letter from the Office of the Attorney General, a health care agent may consent on behalf of an incompetent patient to the administration of antipsychotic medication without a Rogers hearing. If, however, a patient refuses or objects to the administration of antipsychotic medicine, a court-issued judgment is required, regardless of the existence of a health care proxy.
In 2009 the Uniform Probate Code clarified that decisions made by a health care agent take precedence over those made by a guardian. In addition, a guardian cannot revoke a health care proxy without obtaining court authority.
Problems sometimes arise if a patient has a health care proxy in place, is incapacitated and is disagreeing with decisions made by their agent. As stated above, the patients refusing treatment can be taken as a limited revocation of the proxy, at least as it pertains to that particular situation. As an alternative to commencing a guardianship proceeding, an agent under a health care proxy can file in probate court a petition to affirm that the health care proxy is valid and that the patient is too incapacitated to make medical decisions.
Health care proxies and living wills are often confused. As stated above, the health care proxy appoints a person to make medical decisions on their behalf. A living will on the other hand, expresses an individual’s wishes regarding specific treatment decisions. The health care proxy is the more important of the two documents. Living wills may be helpful to determine the client’s wishes but they are not legally enforceable by themselves. Clients should avoid living wills which attempt to create an exhaustive list of medical scenarios reflecting their wishes on all treatment situations. If the client lists one hundred situations, the agent may face a situation that is not listed. In that event, the health care provider may be left with the impression that since the patient did not specifically list the treatment that may not have wanted to give their agent authority to make that decision. On the other hand, it is important for clients to clarify their wishes regarding treatment decisions. The healthcare proxy can be drafted to include “medical directive” language. A medical directive describes in broad general language what the clients wishes are regarding treatment. Because the directive is general rather than specific, the health care agent can apply it to any situation they face.
This series has been brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston. Posted by Elder Law Boston Lawyer
Wednesday, September 9, 2009
More Links to Cohen & Oalican
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- ERIC R. OALICAN is a partner in the Boston elder law firm of Cohen Oalican, LLP, where he specializes in representing the legal needs of the elderly. . .
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- Eric R. Oalican, Esq., Co-chair, Cohen & Oalican LLP, Boston;Elder Law: MCLE BasicsPlus!®
- Basic concepts of estate and long-term care planning
- We have two types of clients," said Eric Oalican, an elder-law attorney in Boston. "Advance-planning clients, who are in OK health either at home or in an .. . .
- Boston Tax Institute Faculty
- Medicaid Update Speaker: Eric R. Oalican
- Preserving & transferring your client's principal residence / chairs, Eric R. Oalican
- Eric R. Oalican, Esq., program chair. Cohen & Oalican LLP, Boston. Leslie S. Madge, Esq. ... Eric R. Oalican. LONG-TERM. CARE ASSET. PROTECTION. PLANNING
- Eric R. Oalican,. Esq., Cochair, Cohen & Oalican LLP,. Boston;Elder Law BOSTON, Thursday, September 10 & Friday, September 11, 2009 - Basic concepts of estate and long-term care planning MCLE BasicsPlus
- Eric Oalican
- 1-day seminar (8 credits) led by Steven Cohen, Esq., and Eric Oalican, Esq. Topics include the essentials of estate planning for accountants and their. . .
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Tuesday, August 4, 2009
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.
This is the first in a series, brought to you by Boston Attorneys Cohen & Oalican, LLP, specializing in Guardianship and Conservatorship Attorneys in Boston.
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.
Saturday, July 25, 2009
Tax consequences of an Irrevocable Trust
An irrevocable trust is written so that if your home or other appreciated assets are sold after your death, your heirs will receive what is called a “step-up” in the tax basis. This means that the ultimate beneficiaries of the irrevocable trust will pay little or no capital gains taxes if they decide to sell property after your death. If your primary residence is owned by an irrevocable trust and it is sold while you are alive, you will be able to utilize your $250,000, or $500,000 in the case of couples, capital gains exclusion.
An irrevocable trust property will be included in your taxable estate. A Massachusetts estate tax will only be owed upon the surviving spouse’s death if your total estate (including the irrevocable trust's assets) exceed $1 million.
If you have only placed real estate into your irrevocable trust, you can continue to file your annual income taxes as you have in the past. Accordingly, you will not need a new tax identification number for the irrevocable trust. Further, you will still be able to claim any deductions related to your home on your taxes.
If you have placed liquid assets into your trust, you will need to apply for a new tax identification number (EIN) and file an annual trust tax return. An irrevocable trust is drafted so that all the income earned on the irrevocable trust's assets will be taxable to you. You should contact your accountant who will need to complete the necessary tax forms for the irrevocable trust.
Pulbished by Cohen & Oalican, LLC Special Needs Trusts Attorneys in Boston
An irrevocable trust property will be included in your taxable estate. A Massachusetts estate tax will only be owed upon the surviving spouse’s death if your total estate (including the irrevocable trust's assets) exceed $1 million.
If you have only placed real estate into your irrevocable trust, you can continue to file your annual income taxes as you have in the past. Accordingly, you will not need a new tax identification number for the irrevocable trust. Further, you will still be able to claim any deductions related to your home on your taxes.
If you have placed liquid assets into your trust, you will need to apply for a new tax identification number (EIN) and file an annual trust tax return. An irrevocable trust is drafted so that all the income earned on the irrevocable trust's assets will be taxable to you. You should contact your accountant who will need to complete the necessary tax forms for the irrevocable trust.
Pulbished by Cohen & Oalican, LLC Special Needs Trusts Attorneys in Boston
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