Law Offices of Maureen E. Lane
Do I need a Health Care Proxy?
In 1990, the Commonwealth of Massachusetts enacted a law recognizing Health Care Proxies. A Health Care Proxy allows an individual to nominate another person to make medical decisions for them. A valid health care proxy must be in writing, signed by the individual, and witnessed by two other individuals. A Health Care Proxy can confer a general power or can be specific. Where a general power is given to the agent, the agent is responsible for considering all medical alternatives and must make a decision in accordance with the wishes of the individual. If the principal's wishes are unknown, the agent is then required to make a decision in the best interest of the individual.
A Health Care Proxy is a necessity in this day and age. It can save a family from the anguish of watching a loved one suffer in a vegetated state indefinitely when they know that the person would want to die. It also gives the person naming a health care proxy the ability to make their wishes clear. Taking the time to nominate a health care agent could save an individual's loved ones from agonizing over this issue when he or she becomes ill.
What is Medicaid, and how do I qualify?
There are fallacies about Medicaid including the hows and the whys one qualifies for Medicaid. In addition, many people fail to realize that planning for long-term nursing home coverage may allow them to keep their savings or a second home. This information is designed to dispel some of the myths about Medicaid and replace them with the facts.
MYTH: I'll never need Medicaid because my nursing home bills will be nominal, or I'll never need a nursing home.
FACT: The probability of not needing a nursing home these days is relatively small. In addition, the level of care required by many individuals is too great for a spouse or an adult child to provide at home.
MYTH: Medicaid will take everything you own when you get into a nursing home.
FACT: Medicaid considers only certain items to be countable in determining your eligibility for benefits. Moreover, if you are married, Medicaid will allow the healthy spouse to keep certain assets.
MYTH: I'll just put everything in my children's name and that way I can hide it.
FACT: Medicaid will look back at your asset transfers for a period of three years for outright transfers and five years for transfers to a trust. Also, you are subjecting yourself to the possibility that your children could get sued or divorced and your assets may be treated as your children's assets.
MYTH: If I can't escape the five-year period, there's nothing I can do. I waited too long to do something.
FACT: Although the state and federal government do put a great deal of restrictions on an individual's ability to protect assets, there are still a few things you can do. There are last-minute planning techniques that can be utilized in certain cases. Simply because an individual cannot escape the five-year look-back period does not mean they should anticipate losing everything.
How can the Homestead Declaration Act protect me?
The Homestead Declaration is designed to protect individuals against creditors who may try to go after their house. Recently, the general protection was raised to $300,000 for all individuals who file a Homestead Declaration. The protection is obtained by filing a Declaration of Homestead at the local Registry of Deeds. This filing protects against future creditors, but it does not benefit Medicaid recipients because it does not protect against the government as a creditor.
Is it really necessary to have a Will?
Wills are a crucial, but simple aspect of estate planning that everyone should have. The following information will help to clarify some of the misconceptions about wills.
MYTH: I don't need a will because my spouse will take everything upon my death.
FACT: This type of reasoning can create many problems. If the decedent is sole owner of the property, it will have to be transferred under the laws of the intestacy. Intestacy is the legal means of distribution for the property a person of a person without a will. Intestacy takes away a person's ability to leave property to the person to whom he or she wants to leave it. Additionally, not everything goes to the spouse when an individual dies without a will. The rules of intestacy make provisions for children. This may leave a spouse with less than what the decedent wanted. Second, by not leaving a will, the intentions of the individual may not be clear to his or her family. This may put a strain on family relations.
MYTH: I'm so young I don't have to think about this yet.
FACT: It is never too early to make a will. Anyone who has anything to pass on should think about making a will. It is especially important for individuals with young children to make a will so that they can designate a caretaker or guardian for their children and make financial arrangements for the needs of their children.
MYTH: I have a will, so I am all set.
FACT: Many events happen that change the circumstances of one's life. Children are born, children are married, grandchildren are born, or a spouse may die. All of these events can have an impact or necessitate changing or updating your will. Most importantly, the law changes so rapidly that having your will reviewed or updated every few years is highly recommended.
Why is it important to execute a durable power of attorney now, and how can it protect me from the cost of guardianship petition in the future?
A power of attorney gives another person the power to act as your agent in certain instances. The basic power of attorney is effective immediately, but the authority is terminated when the client becomes incapacitated. Conversely, a springing power of attorney is only legally binding once an individual becomes incapacitated or disabled. A durable power of attorney, however, is effective immediately and continues during incapacity. This may save the individual's family thousands of dollars in legal fees by eliminating the need for a costly guardianship and conservatorship petition. To authorize a durable power of attorney, a person must be of sound mind and the document must be signed by two witnesses. The types of powers that are generally granted in a power of attorney are the right to handling the banking needs of the party or the right to pay the taxes of the party. One might even grant his agent the power to make gifts on his or her behalf. A durable power of attorney is recommended for any individual, since it can be executed, but not used, until the need arises. A durable power of attorney can also be revoked after it has been created.