Category Archives: Elder Law

CannonMurrayLaw, llc

More than a year ago, I went into partnership with Attorney Ray Cannon and began spending time in the North Andover location, as well as in the Gloucester office. His practice, like mine, focuses on Estate Planning and Elder Law. With more than 20 years of experience, Attorney Cannon provides senior expertise in trust, tax and Medicaid planning. Our firm currently has three attorneys and provides specialized estate planning and elder law services to clients throughout Massachusetts. In the last few months, we have added Attorney Leslie Starritt to our practice, as well as Alyson Malavich, our Gloucester law clerk.

Attorney Starritt, who primarily practices in our Gloucester office, applies a commitment to client service and whole-picture design to her work in Estate Planning and Elder Law for CannonMurrayLaw, llc. Her area of focus is Elder Law, Medicaid planning, and assisting families with the Medicaid application process from nursing home admissions through the fair hearing process.

Alyson is a third year law student and brings enthusiasm and attention to detail as she helps keep us on track in Gloucester. Christine MacMullin is our business manager, who manages daily operations in North Andover. She is the person you will probably speak with when you call to make an appointment with an attorney, and can answer many procedural or administrative questions. Shobha Govindan, also in North Andover, is our experienced Estates and Trusts Paralegal. As we continue to grow and welcome new clients, we hope that you will think of us if you have an estate planning or elder law question.

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What IS a Fiduciary?

A fiduciary is someone who is placed in a position of trust, some examples are attorney in fact (under a power of attorney), trustees, conservators, guardians, executors, or attorneys representing clients.  When someone asks you to act as their power of attorney or executor of their will, you are taking on a fiduciary role, and the responsibility that goes along with it.

Relatives of Heiress Huguette Clark Accuse Lawyer and Accountant of ‘Plundering’ Her Fortune; “Attorney Suspended over Will Bequest, Loan”; Northampton Executor Jailed

These cases, a high profile national story, a local disciplinary action, and a British story, have lessons for clients and attorneys working in the estate planning area.  The first is that your actions may well be scrutinized by those who are not favorably inclined towards you, so if you have done nothing wrong, be sure that your record keeping is precise, up to date, and accurate.  If you are acting as a fiduciary (executor, power of attorney, guardian or conservator) keeping accurate records is a DUTY, not something that you can do or not do as the spirit moves you.  A fiduciary’s duties are taken seriously, and if you are not a good record keeper, decline to act as a fiduciary for someone else. 

The other lesson, and perhaps the more obvious one, is that you have an ethical and legal DUTY to act in the best interest of your client (or of the protected person or the heirs), regardless of whether or not it is in YOUR best interest.   Again, this is not optional; if your actions could be misconstrued as not being in the client’s best interest, be meticulous in documenting, bringing in third parties, and recording the set of circumstances that led to such an outcome.  If you are simply a family member trying to do the right thing, get some professional assistance so you don’t wind up in a contentious law suit – or worse.

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Digital Asset Planning

Usually when you visit an estate planning attorney, there is a LONG form to fill out describing family, last wishes, assets and liabilities, and who should be your executor, trustee, or guardian of minor children.  There are often conversations about health care choices, nursing homes, and how the primary residence should be owned.

When was the last time your attorney asked you to write down your Facebook username?  Probably never.  In our rapidly changing relationship with technology, what we own and how we own it is also changing.  I heard on the radio this morning that 60% of bills are paid on-line now (this is why the U.S. Post Office needs to shrink).

Think about how that will affect the person who probates your estate…We used to hope that there would be an organized file with bills and account numbers, we’d count on the mail coming with statements and other account numbers.  How do we find the electronic accounts that “Aunt Edna” kept on her office computer?  How will we find the beautiful photo albums that mom kept in her Flickr account?  What about the software that has three years left on its license – who owns that, and what is it worth?  How on earth do you cancel the monthly Xbox Live account?  (Anyone who can provide this information to currently living mothers will also score some major points!)

Let’s get started on our digital asset planning.  I’ve got another long form that I’m happy to e-mail to anyone who requests one.  Please put “digital asset planning” in the subject line and send a request to bridget@bmurraylaw.com.

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Do we REALLY need two witnesses?

Going through the correct procedures of witnessing and notarizing estate planning documents can seem onerous, but skip it at your peril.  I recently read this in ElderLaw Answers…

 

 

Texas Attorney Disbarred for Attempted Theft Through Improper Will Filing

 

A Texas appeals court affirms an attorney’s disbarment for attempting to steal from an elderly woman’s estate by filing a will that had not been properly witnessed or notarized. Olsen v. Comm. for Lawyer Discipline (Tex. App., 5th Dist., No. 05-09-00945-CV, Aug. 9, 2011).

In 2002, Mary Ellen Logan Bendtsen executed a will that left her entire estate to her daughter and only child, Frances Ann Giron, and named Ms. Giron as executor of Ms. Bendtsen’s estate.  Following a fall in early 2005, Ms. Bendtsen, then 88 years old, was admitted to a hospital where a psychiatrist determined that she suffered from dementia.  While in the hospital, Ms. Bendtsen was visited by attorney Edwin C. Olsen IV and she executed a new two-page will that he had prepared which replaced Ms. Giron as executor and sole beneficiary of her mother’s estate and named a new executor and beneficiaries.

Ms. Bendtsen died on March 2, 2005, and within hours Mr. Olsen filed an application for probate of the new will on behalf of the new executor.  He attached to the application the two pages signed by Ms. Bendtsen and a one-page jurat signed and notarized by a notary.  Ms. Giron filed an application for probate of the 2002 will and a petition contesting the new will’s validity.  Subsequent evidence revealed that Ms. Bendtsen had not signed the will in the presence of both witnesses and that the notary, despite language in the jurat to the contrary, had not witnessed Ms. Bendtsen sign the will and had not signed and notarized the jurat in her presence.  The probate court set aside the 2005 will and admitted the 2002 will to probate.

Ms. Giron then filed a complaint against Mr. Olsen with the state bar.  A trial court granted the Commission for Lawyer Discipline’s motion that Mr. Olsen violated various rules of professional conduct and had committed the criminal offenses of attempted theft and securing execution of documents by deception.  The trial court later entered a final order permanently disbarring Mr. Olsen from practicing law in Texas and ordered him to pay the commission’s attorneys’ fees and costs.

On appeal, Mr. Olsen acknowledged that the jurat falsely stated that Ms. Bendtsen had signed the will in the presence of the notary.  However, he argued that the filing of the three-page will with the notary’s jurat instead of only the two-page will signed by Ms. Bendtsen was not done for dishonest reasons but rather to accommodate the notary, who had refused to go to the hospital to notarize the document.

The Court of Appeals of Texas, Fifth District, affirms Mr. Olsen’s disbarment.  The court concludes that he failed to raise a genuine issue of material fact that would preclude summary judgment on the commission’s claim that by filing the 2005 will and jurat, knowing them to include false information, he violated the rules of professional conduct relating to honesty, deceit and making false representations to the court.

For the full text of this decision, go to: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+769150

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Probate Checklist

If someone close to you has passed away, there are things you will need to gather together to begin the probate process.  Some of these are listed below:

  • Any Bank or Other Account Statements
  • Lists of Stocks, Bonds
  • Location of Safe Deposit Box
  • Last Tax Return
  • Certified Death Certificates If Issued
  • Last Will and Testament
  • Any Trust or other Agreements
  • Copies of Insurance Policies, Annuities, Retirement Plans
  • Copies of Real Estate Documents including Deeds
  • Copies of Divorce Decrees

 

Finding and putting these together will allow your attorney or accountant to help you with the estate efficiently.   Depending on the type of assets and family situation of the person who has passed away, probating an estate can be a long and complex process. 

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Planning for Incompetence

One of the scariest scenarios we face is the prospect of no longer being able to make our own decisions and to think for ourselves.  Often this is a process of gradual decline, and either we, or those close to us, can see the changes and understand what is happening.  If you have not done advanced planning, that’s a good time to get moving.  There are some fairly straightforward documents that you can draft and execute which will allow those you love and trust to make important decisions. 

1.  Health Care Proxy:  this document names the person who can make medical decisions for you in the event that you are unable to make them yourself.  In Massachusetts, only one person can be named at a time, but you can have successor agents in case the first person is not available.  I recommend that everyone have a Health Care Proxy (including young adults so that doctors must listen to their parents, or to the person they have designated).

If you do not have a Health Care Proxy and there is a disagreement about your care, it is possible that a Guardian will have to be appointed by the probate court.  This is a process that can be time consuming, complex, and expensive.  In the end, the court decides who will make decisions about your care, not you.

2.  Durable Power of Attorney:  this document names a person who can sign documents on your behalf, and who can make financial and administrative decisions on your behalf.  This can be effective now, or it can come into effect upon your incapacity. 

Like a Health Care Proxy, if you do not have a Durable Power of Attorney, and become incompetent, a family member or caregiver will have to go to court to be named to represent you.  This person is called a Conservator, and this process, like naming a Guardian, requires court involvement and much expense.  It also means that the court makes the final decision about the person best suited to manage  your affairs.  Judges are wise and thoughtful, but they don’t know you or your family members the way that you do – don’t you think you’ll make a better decision?

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Grandma’s Yellow Pie Plate

There’s a great book called “Who Gets Grandma’s Yellow Pie Plate” which is put out by the University of Minnesota Extension Service.  It’s a kind of how to guide for dividing personal property when someone passes away.  Often it is things with sentimental value that tear families apart after a death.  Did your family have a special tradition, your mother a favorite Christmas tree ornament, your father a pipe or carving that brings back fond memories?  How items like this are divided upon a person’s death can cement a family in fond memories, or re-ignite old scars and power struggles. 

There are different ways to approach dividing personal property – ask the people who are important to you what things they value.  You might be surprised by what they say.  You can give things away while you’re alive, or make a list of items and recipients.  Often such a list is mentioned in a will; it should be signed and dated.  After a person has died, the family may gather to divide things up; do this with a plan and some thought.  Who should be there, where should the conversations take place, when should this happen? 

And of course, don’t forget to have this conversation about your pets.  We joke in my family that the turtle will be going to the nursing home with me because it’s likely to live longer than I do…I hope it’s only a joke!

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But Doesn’t Everyone Need a Trust?

I recently had a client explain that they wanted a trust because Suze Orman said that everyone needed a trust.  Now, in general, trusts meet many needs, and are often a good idea.  Especially if there are minor children, adult children who might do better with structured payments, or long term care planning concerns, trusts can fill a valuable need.  However, just as not everyone NEEDS a prenuptial agreement, not everyone needs a trust. 

Trusts help  you avoid much of the probate process, but there are other ways to do this, too.  If your assets are jointly held with your spouse, and one of you dies, the assets will go “by operation of law” to your spouse without going through probate.  In a similar way, anything with a beneficiary designation (life insurance, annuities, most retirement accounts) will go to that beneficiary directly.  The probate court will oversee any assets that pass through your will, and sometimes this can be a good thing.  It does take time to probate an estate, but if the assets are fairly limited, the cost of setting up a trust may not be appropriate.

Regardless of whether you do or do not need a trust, please call an advisor you trust before you make important estate planning decisions, I know that you aren’t cookie cutter clients, why should you have a cookie cutter estate plan?

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Getting organized…

I want to re-finance my house, consolidate all those little IRAs and 401k’s from old jobs, get a new passport, make a will…What’s the common denominator?  When you start on any of these tasks, you need to be able to put your hands on paperwork, sometimes LOTS of paperwork.  Do you know where your birth certificate, bank statements, investment statements for the last three months are?  And I mean you can hand them to someone easily, not that you’re sure that they are in the big pile over there.

Or, could you tell someone else where to find your life insurance policy, homeowner’s policy, or auto insurance policy if you were away on vacation and you needed to file a claim? 

Join us for a complimentary seminar on May 26th, 2011 at 5 pm at the Cape Ann Savings Bank in Gloucester.  Gail Ramos, Senior Trust Officer at the 
Cape Ann Savings Bank and I will talk about getting a grip on organizing some of that paperwork…Networking from 5 to 5:30 and the program will go from 5:30 – 6:30.

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Retirement medical costs…

Fidelity Investments recently released a report heralding an 8% drop in medical expenses that a couple retiring in 2011 would expect to pay.  See Full Report.  That’s good news, the bad news is that this is still expected to top $230,000 and that’s a number that’s likely to grow.   A visit to your retirement planner is in order if you aren’t factoring this into your savings.  If you need names of reputable financial advisors who specialize in retirement planning, I’m happy to share the names of those I work with here on the North Shore.  Call or e-mail if you need a referral.  bridget@bmurraylaw.com

And all my contact info can be found at www.bmurraylaw.com

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