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Boston Elder Law Blog

Incapacitated adults rely on guardians for a number of things

Those individuals in Massachusetts and elsewhere who are appointed as guardians of adults have a number of responsibilities. After all, incapacitated adults depend on these individuals to make many important medical and personal decisions for them -- among other things, -- which is no small feat. What are some of the duties and responsibilities assigned to guardians, and are there any limits to their decision making powers?

The list of a guardians duties and responsibilities is fairly extensive. What is on this list may vary depending on the limitations of the individual placed in a guardian's care. However, common responsibilities include:

  • Providing for everyday needs
  • Advocating for legal rights
  • Making decisions about medical care and treatment
  • Ensuring living environment is safe and appropriate

Medicaid look back: 3 FAQs

Medicaid is a federal program designed to cover the costs of medical care once a qualifying individual's funds are depleted. Steps can be taken to proactively plan to qualify for these benefits.

Qualifying for Medicaid can be beneficial in a number of situations, including for married couples. It can allow for one spouse to qualify for Medicaid benefits without depleting all of the couple's assets.

There is more to estate planning than just a will

Some Massachusetts residents are under the impression that if they have a will, they have done what they can to protect themselves and their families. However, there is more to estate planning than just wills. Other documents are needed to protect people in the event that they become incapacitated.

If an individual becomes unable to make decisions for him or herself due to an illness or injury, someone will need to step in and handle health and financial matters during that time. Without powers of attorney for health care and finances, family members will often need to go to court in order to obtain the right to act on behalf of an incapacitated loved one. Having to do so could cause significant delays that could ultimately cause harm to the individual.

A special needs trust can help put parents' minds at ease

Many Massachusetts parents devote their lives to taking care of their children -- especially children with special needs. These children often require care even after they become adults, and additional estate planning will most likely be required in order to help secure their futures. Creating a special needs trust to go along with other documents could help put parent's minds at ease.

It might not be in the child's best interests to assume that other family members will voluntarily step up to take care of him or her after the parents pass away. This leaves too much to chance, and too much is at stake. Special needs children are often eligible for government assistance, but they must meet certain qualifications first -- including financial ones.

Not enough people engage in long-term health care planning

The chance of a Massachusetts resident age 65 or older needing to move into a nursing home is 50 percent. Even so, long-term health care planning is not something that enough people think about. Without it, a person's retirement and other assets could be drained quickly.

Currently, the average cost for a private room in a nursing home is $75,000. In addition, the average amount of time that a person spends in a nursing home is 2.5 years. When the average cost is multiplied by the average time, the total cost is $185,000. Without the proper resources, other arrangements would need to be made.

It is not a good idea to go through the probate process alone

Everyone wants to save money where they can. For many people, that means doing things themselves. There are many projects that Massachusetts residents can do with little to no repercussions that will not cost them as much as bringing in a professional. However, that philosophy often does not apply to legal issues such as the probate process. Attempting to go it alone could result in costly mistakes that could be even more expensive to fix.

There are three primary mistakes that people make when they go through the process alone. The first is not providing notice of the probate to every potential heir. Even if someone is specifically excluded from the will, the law still requires they be given notice.

Review is an important part of estate planning

Many Massachusetts residents have executed the necessary documentation to provide for their families after they pass away. They might believe that their job is done once the documents are signed. However, estate planning that is done at a particular time in a person's life might need to be modified as the years pass and circumstances change.

Certain events in a person's life might change how they feel about the estate plan. Getting married, divorced or having children or grandchildren could make a person want to rethink how the plan currently reads. In some cases, an individual who is supposed to receive an inheritance dies. As a person ages, his or her wealth could also increase or decrease necessitating a change in how it will be distributed.

What Massachusetts residents should know about wills

The one thing that everyone can count on is that no one lives forever. Nevertheless, most people are not comfortable contemplating their own deaths, so they do not have wills and other estate-planning documents in place. Even though the individual might not be around to suffer the consequences of failing to plan, his or her family will be. 

Without a will, a Massachusetts court will appoint someone to administer an individual's estate. This might not be the person that he or she would have trusted to take care of such matters. Furthermore, state law will determine who inherits the individual's property. Even if an individual discussed who should be given what property upon death, if it is not written out in a will, those wishes mean nothing legally. Whoever inherits the assets is under no legal obligation to share them with anyone else.

What happens to digital assets upon death?

Nearly every Massachusetts resident has some sort of online account whether personal, financial or professional. Many people bank online, have social media accounts and keep their digital photos online. As the law attempts to catch up to the digital revolution that seems to be taking place, people need to take steps to ensure that their digital assets are part of their estate plans so they can be dealt with by family members after death.

Without provisions regarding these assets, they could be lost forever. Family members, or at least the executor or personal representative of an individual's estate, need to be made aware that these assets exist and how to access them. If an individual does not want anyone having access to the usernames and passwords of these accounts until after death, they at least need to be referenced in the will. A written inventory of all online accounts, including social media, along with the information needed to access them can be kept with the original will or in another safe place.

Designing wills to combat disgruntled heirs and beneficiaries

No matter how hard a Massachusetts resident tries, there is always the possibility that an heir or beneficiary will not be happy with an inheritance -- or the lack of one. That person could file a will contest with the probate court, which could delay the distribution of the estate and cost it additional monies that could otherwise be distributed. That is why it is important to design and update wills in order to forestall the potential for those who are disgruntled to cause problems after a family member passes away.

The question is how to prevent -- or at least limit -- this potential. The first line of defense is often to include provisions in the will that penalize anyone who contests the will. Such "no contest" provisions are most effective when the potential contest comes from someone who is already receiving a share of the estate, but believes that he or she is entitled to more. The provisions can either reduce an inheritance by a certain percentage or deny it all together.

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