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Boston Elder Law Blog

Track testamentary capacity to protect an estate plan

Estate plans are an important part of an elder's life. They can say many things, from what happens to their assets to how they will be treated in the case that a life-threatening situation emerges. It is not always easy for families to discuss estate plans, but it is important to do so.

As your loved one ages, their ability to make good decisions may begin to decline. As a result, any changes that take place in a will or estate plan could become null and void in the future. It is better for you to know the signs that someone is no longer able to make their own decisions and to have a working knowledge of the current estate plan and your loved one's wishes.

Conservatorships may be needed if dementia sets in

Many Massachusetts residents have older family members who are still in good health. Still, they may understand that mental capacity often declines as individuals age, and the possibility exists that dementia could easily affect any older loved one. When that happens, it may be time for other family to consider the possibility of conservatorships.

While no one wants to think of a loved one suffering from mental deterioration, it is a considerable possibility. People are more likely to begin showing signs of Alzheimer's disease around the age of 60, and every five years after 65, the possibility of developing the disease doubles. Individuals with a family history of the condition and who have poor heart health could also be more at risk.

What happens to validate a will and start the probate process?

A number of tasks need to be completed before a recently deceased person's affairs can be settled. These tasks usually take place during the probate process, which many Massachusetts residents may not have much information about. In particular, one of the first steps that needs taking is having the will validated by the court.

In order to have the will validated, the person holding the will, often a family member or executor, must file the document with the probate court. Generally, the probate process begins at this time if the person also files the petition to start the process. Individuals may also want to determine whether they need to present the decedent's death certificate at this time. Having all the necessary documents gathered and organized can help this step go smoothly.

Wills, other planning documents can benefit business owners

Small business owners in Massachusetts and elsewhere have a number of variants to consider when starting and running their companies. While a business plan can help address many important aspects, they may also want to consider having an estate plan. Wills and other end-of-life documents can help business owners detail how they want their companies' affairs handled after their passing.

Without a will, the future of the company goes up in the air. Surviving family members may end up with a business that they did not really want, or the business could shut down due to a lack of leadership. If a business closes, the family may then face substantial financial struggles due to a loss of income as well as possible creditor claims. There is also the chance that family members may fight over who should have control of the company.

Estate planning may lessen strain of caring for an elderly parent

Most Massachusetts residents want their parents around for as long as possible. Of course, the older parents get, the more likely it is that they will face serious health issues. Estate planning can help in this situation if parents decide early how they want their care handled and paid for. However, many people do not take advantage of this planning, and adult children may be left shouldering the responsibility of care.

While middle-aged children may have the physical and mental stamina to provide such care, longer life spans are putting more retirement-aged individuals in the role of caretaker for parents in their 90s or beyond. Recent reports indicated that 10 percent of individuals in their 60s care for their elderly parents, and 12 percent of those 70 and older are also in a caretaker role. Because of the ages involved, the possibility also exists that a person could end up caring for a parent and a spouse.

Things to remember in estate planning

Planning for the future is an important and somewhat daunting task. Many Massachusetts residents begin the estate planning process without truly knowing where to begin or what they will need. Some people believe that a will is all that they will need, but there are a number of situations that are not covered by a simple will. 

There are many people across the country who fail to make plans for if they are incapacitated. Planning for such a situation might include naming a power of attorney to make financial or healthcare decisions. It might also include creating a trust for whomever is given the task of making decisions to draw on when necessary. 

Questions about a college trust fund

You had your first child, and so you decided it was time to do your estate planning. After all, though you hope you will not need it for decades, you never know. You have seen the statistics and news reports about car accidents -- you understand the very real threat of unexpected illness and disease.

While you don't consider yourself a pessimist, you know that it's better to plan in advance than to put it off and leave your family without a plan when they need it most.

Health care planning for all situations

People typically do not want to think about what their lives would be like if they were incapacitated and unable to make their own decisions, but many could benefit from considering the possibility. Massachusetts residents, as well as others across the country, who are learning more about health care planning might be unaware of how many options they have available to them. Some might believe that a will is all that they need, but then they eventually discover that they could also benefit from setting up a power of attorney or an advanced directive.

Power of attorney may be given to a single person or it may be divided between two different people. A durable power of attorney is appointed to handle a person's finances if he or she is unable to do so. This includes paying bills, managing accounts or filing taxes if necessary. However, a health care power of attorney is appointed to make health care related decisions for an incapacitated person. Some of these tasks might include scheduling and keeping appointments, approving treatments, discussing medical care with doctors, or seeking other medical opinions. 

Abuse of incapacitated adults

Unfortunately, the abuse of elderly or disabled individuals is not entirely an uncommon occurrence. Many Massachusetts families have seen or experienced the abuse of incapacitated adults by appointed guardians, private nurses or even other family members. This can result in heavy fines or even jail time for the abusers.

A woman recently pleaded guilty to accusations of multiple felony charges, including neglecting an incapacitated adult causing serious bodily injury and financially exploiting an incapacitated adult. She had stolen and spent more than $70,000 of her mother's retirement savings without authorization. The woman was also accused of leaving her mother alone for several days at a time even though her mother was entirely dependant on her.

The validity of cell phone wills

Many people don't know where they would be on a daily basis without their cell phones. These small devices have become an integral part of many people's lives in Massachusetts as well as most other states across the country. It isn't unusual for people to keep personal or important information on their phones, such as bank or credit card apps and accounts, but some people have even started keeping wills on their cell phones

Courts recently decided after two years of appeals that the digital letter found on the cell phone of a 21-year-old suicide victim should be upheld and treated as a last will and testament. The young man left a handwritten note indicating that his last notes and wishes were stored on his phone. These documents included personal notes, such as religious statements and apologies, as well as more formal requests and wishes, such as his preferred funeral arrangements. Most importantly, these notes indicated that the young man wished for his possessions, including a large trust fund, to be given to his half-sister.