What is Elder Law?
Elder law is considered a specialized area of legal practice that serves the needs of older individuals. Elder law attorneys understand the legal issues and laws many older adults face and are often advocates for them and their families. Many certified elder law attorneys are adept at handling a wide range of issues affecting older or disabled persons, including but not limited to:
- Medicaid/MassHealth
- Estate planning
- Healthcare directives
- Long-term care planning
- Retirement
- Financial planning
- Incapacity planning
- End-of-life planning
What is Estate Planning?
Most elder law revolves around provisions in the event an older adult becomes incapacitated or passes away. An estate plan is a vital document that every adult should possess to cover this scenario. An estate plan is fully customizable and can be tailored to the needs of the individual. It can detail a person’s financial or medical desires if they are unable to speak for themselves. It can provide guidance for property distribution after death and assign a guardian for minor children.
What is a Will?
A will outlines the distribution of assets upon the passing of the maker of the will. A will must go through probate court, which takes time and results in fees that reduce the size of the estate. According to Massachusetts law, dying without a will subjects the possessions of the deceased to the rules of intestacy. The rules of intestacy will grant ownership of undeclared assets to the next closest blood relative and may not reflect the desires of the testator (creator of the will). A will ensures that the estate is divided according to the desires and wishes of the testator. It’s common for the presence of a will to expedite and reduce the cost of probate. A will doesn’t determine the allocation of the following assets:
- Assets held in joint tenancy with right of survivorship
- Bank and brokerage accounts held in joint name or with transfer on death or payable on death beneficiaries
- Assets within a trust
- Life insurance, brokerage accounts, and retirement accounts that list a beneficiary other than the deceased’s estate
What is a Trust?
A revocable trust is considered one of the most useful tools for estate planning and management of familial assets. Forming a trust consists of several steps:
- The grantor initially creates the trust.
- The trust is funded by placing the grantor’s assets into it. Included assets may be stocks, bonds, mutual funds, real estate, bank accounts, etc.
- The trustee (person who manages the trust) accepts the responsibilities as expressed in the document. The trustee may also be the grantor during their lifetime.
- The trust contains provisions instructing the trustee in managing investments and distribution of income or principal to the beneficiaries.
- Beneficiaries are selected to benefit from the trust. This may include the grantor during their lifetime and family, friends, or charities after the passing of the grantor.
Trusts can perform many helpful functions, such as:
- Avoiding the delays and costs of probate for any assets held within a trust.
- Ensuring the continued management of business or personal finances.
- Appointing a successor trustee who can step in and manage the trust’s assets in the event the trustee becomes incapacitated.
- Keeping wishes private. A will has to be filed with probate court, so it becomes public record.
- Protection for minor children or loved ones who are unable to manage money by setting up a distribution schedule for assets instead of giving them a lump sum at one time.
- Appointing pet care upon death or incapacity of the owner.
- Controlling assets even after death.
What is a Power of Attorney?
A power of attorney is a document that names a person who has been chosen to make financial, business, legal, or medical decisions on behalf of the testator should they become incapacitated. A power of attorney should be a trusted individual you have talked to about your wishes and preferences. Usually, it is a spouse, child, or other close relative. There are several types of powers of attorney, and the two most common ones are:
- Financial power of attorney: It allows a person to handle financial or business matters.
- Medical power of attorney: This document allows a person to make medical decisions on behalf of another person. This is also known as a health care proxy.
What is an Advance Directive?
An advance directive, like a health care proxy or living will, instructs a person’s medical care. It only goes into effect when a person is unable to make their own medical decisions. A health care proxy is a legal document that names someone who can make medical decisions on behalf of another person upon incapacitation. A living will tells medical staff how a person wants to be treated during end-of-life care. A living will is an advance directive that isn’t legally recognized under Massachusetts estate planning but it serves as a guide to the agent appointed under a health care proxy. With an advance directive, physicians and other healthcare professionals will be aware of the wishes of the person who created it.
What is a Conservatorship vs. a Guardianship?
The court appoints a conservator or guardian to make decisions for someone who is mentally or physically unable to care for themselves. People who need this type of care are called “wards.” If the ward is an adult and has created advance directives like a health care proxy and a durable power of attorney, those documents would likely eliminate the need for a guardianship or conservatorship.
Appointed conservators can have many duties, and any adult deemed “proper and fit” may act as a ward’s conservator. Typically, the conservator has the legal ability to:
- Manage the ward’s bank accounts and investments
- Pay the ward’s debts
- Collect funds owed to the ward
- Represent the ward in all legal proceedings where they have a financial stake
- Control and manage the ward’s property
- Support the ward using the ward’s funds
- Protect the ward’s financial interests from creditors and other third parties
A guardian makes day-to-day personal decisions about the care of the ward based on what the court permits them to do. Typical daily decisions include:
- Nutrition and hydration
- Medical care
- Education
- Shelter
- Entertainment and activities
- Travel and transportation
- Clothing
- Grooming
Do I Need an Attorney?
When dealing with legal matters that dictate how your estate is dispersed and how your loved ones manage after your death, you need legal help you can count on. Call the Heritage Law Center today at 617-299-6976 or fill out a contact form for a free consultation.
