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Boston Elder Law Blog

Newly married couples in Massachusetts need wills, too

Newly married couples in Massachusetts are most likely not focused on estate planning. However, getting married is one of those life events that require changes to -- or the creation of -- the parties' wills and other estate-planning documents. Doing so as soon as possible helps ensure that an individual's new family is taken care of should something happen to him or her.

In the flurry of wedding preparations and honeymoons, many people fail to discuss what would happen in the event of incapacitation or death of one or both parties. Now that the festivities are over, it may be a good time to broach the subject. Depending on the parties' circumstances, even if one party had a will prior to the marriage, substantial changes may be needed now.

Proposed regulations may help with long-term health care planning

The population of our country is aging. As such, long-term health care planning -- including insurance policies to cover nursing home and assisted living costs -- becomes increasingly important. The state of Massachusetts is considering regulatory changes to the long-term health care insurance industry in the state in an attempt to provide protections for consumers.

In recent years, the premiums for these insurance policies have gone up significantly. Advocates for the purchasers of this type of insurance product have lobbied the state of Massachusetts to put a cap on the premiums. Unfortunately, the proposed regulatory changes do not include rate caps.

Cohabitation can make estate planning even more important

Many older adults in Massachusetts are foregoing the marriage vows and living together. This may provide some advantages to many couples, but when it comes to what happens if one party becomes incapacitated or dies, it can be problematic. Cohabitation makes estate planning even more important in order to protect the surviving party.

For instance, if the couple is not married, one partner has no legal standing when it comes to healthcare decisions, and a non-family member's right to visit a patient is often limited. Even though the party may know what the incapacitated person's wishes are, he or she may only make suggestions, which no one of obligated to honor. In order to correct this problem, the parties may execute powers of attorney for both healthcare and finances. This would allow the parties to care for each other in appropriate circumstances.

Accounting for all assets, including digital ones

The purpose of an estate plan is to be sure that family is aware of how a Massachusetts resident's estate is to be administered in case of incapacitation or death. In order to effectively do so, family needs to know about every asset the individual owns, including digital ones. Without this information, crucial assets and liabilities could go unnoticed.

Many people have social media accounts, online retail accounts and bank accounts that only exist online. If family members do not know they exist, it might be impossible to properly administer an individual's affairs. Making a detailed list of digital assets can provide the information necessary for family members to adequately take care of them if the individual becomes incapacitated or passes away.

Advance directives do not always work, ask Casey Kasem's family

As many Massachusetts residents are aware, Casey Kasem lent his voice to both television and radio for decades. Now, he is lying in an out-of-state hospital dying, and his family is fighting over how it will happen despite the fact that he signed an advance directive in 2007. His dilemma illustrates how sometimes families end up in court despite their loved ones having advance directives.

Doctors diagnosed Kasem with Parkinson's disease in 2007 and he then appointed his eldest children as his health care proxies. The diagnosis was later changed to Lewy body dementia. When Kasem’s health began to deteriorate, his current wife — who is not the mother of his oldest children — kept them away from him. The battle became heated and one of his children had to get a court order to be allowed to see her own father.

The probate process is harder without an up-to-date estate plan

Without an up-to-date estate plan, there is little to no guarantee that a Massachusetts resident's assets will end up with the person or persons intended. This will also make the probate process more difficult for family members, since they have no guide as to how an individual wanted his or her property distributed after death. There could also be additional time and costs expended in order to settle the estate.

In order to ensure that assets are distributed in accordance with an individual's wishes, he or she typically needs at least a will. Many people also add revocable living trusts to their estate plans in order to pass on assets without the need to pass through probate. Having assets in a trust prior to death can also make handling a person's affairs in the event of incapacitation less complicated.

Do rich, young people need wills? The answer is yes

The last thing on many young people's minds is their own mortality. Wills are for older people with children, right? Wrong. Young people who are rich and do not have children may not think they need a will, but they do. Otherwise, a Massachusetts resident's assets might not be distributed according to his or her wishes if he or she meets an untimely death.

A person does not have to be as rich as Mark Zuckerberg or Bill Gates to appreciate that friends, family and charities could benefit from their wealth. In fact, at least one charitable organization has seen an increased number of young people make substantial donations in the last decade. Some believe it is due to people like Gates and Warren Buffet, who made what is called the Giving Pledge, along with other wealthy people from around the world.

More people need to consider long-term health care planning

As the population of the United States gets older, planning for retirement may not be enough. Massachusetts residents may want to consider long-term health care planning as well. Putting a plan in place to pay for the possibility of a need to be moved to an assisted living center or nursing home can provide an individual and his or her family with options they may not otherwise have when the time comes.

As parents age, many of them end up living with one of their children. Even if that child takes good care of his or her parents, at some point, that care may not be enough. Without proper planning, it could be difficult to find an assisted living center or nursing home that is within a certain budget or can be paid for by Medicare alone. Further, if one child is left to care for a parent without the help of any other children, it could breed animosity among the siblings.

Be sure to update beneficiary designations on retirement assets

Who will receive an individual's retirement account upon his or her death? One person is named in the will, and another is named on the beneficiary designation filled out by the decedent back when the account was opened. Many people in Massachusetts would make the assumption that the assets in the account would be given to the person named in the will. However, that would be an incorrect assumption.

Under the law, the individual named as the beneficiary on the form filed with the company administering the retirement account will receive the funds. This could include an ex-spouse or another party listed on the designation. This is because these types of accounts pass through what is called an operation of the law.

What to do when adult children become incapacitated adults

Upon turning 18, one of the last things a newly emancipated adult and his or her parents think about is what would happen if he or she ended up in the hospital, unable to make decisions regarding his or her health care and finances. However, the possibility of adult children becoming incapacitated adults does exist. Without an estate plan, gaining access to a child's health care information and finances could require a trip to a Massachusetts court.

Since the child is now legally considered an adult, it may be necessary to be granted a guardianship and or conservatorship of the child -- at least temporarily until he or she recovers. Having guardianship over an adult child allows medical personnel to share information regarding his or her condition. At the same time, the court-appointed guardian can make health care decisions as well.

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