FAQs

Elder law is an umbrella term that encompasses nearly any legal issue that aging individuals regularly face. In the elder law arena, our office primarily engages in planning to preserve assets from the nursing home, as well as filing and litigating applications to obtain MassHealth nursing home benefits. We also litigate guardianship and conservatorship petitions.

In a nutshell, guardians are appointed by the court to make healthcare related decisions for an incompetent person. Conservators are similar except they are only empowered to make financial decisions for the person. In an appropriate situation the court may appoint someone to fill both roles.

It depends on the circumstances and the degree to which the spouse is mentally impaired. If your spouse executed a properly crafted durable power of attorney and health care proxy giving you the authority to make financial and healthcare decisions you may be able to delay, and possibly completely avoid, seeking court intervention. Note that a failing spouse cannot execute a durable power of attorney or health care proxy if he or she is legally incompetent, in which case court intervention will be required. Also note that simply because someone has been diagnosed with dementia does not mean that they are legally incompetent. 

Long-term care can be provided not only in a skilled nursing facility (nursing home) but in many other settings. Home health care is increasingly popular, allowing seniors to remain independent as long as possible. Assisted living facilities offer an intermediate alternative between home health care and nursing homes and provide some monitoring and medical care in a home-like environment. Continuing care retirement communities and retirement communities with memory care units may work well for seniors with fluctuating needs or dementia, as they can move among sections of the community as their health condition changes.

Depending on your age and health, a long-term care policy that covers home health care, assisted living, and nursing home care can be a good option, as these care costs are quite expensive and can quickly deplete a lifetime of hard-earned assets. However, long-term care insurance also tends to be expensive and difficult to obtain and thus is not the right option for everyone.

Most people do not think of themselves as having an “estate,” thinking that the term is reserved for only the highly wealthy. But it is simply a term that refers to the assets you own, including your interests in all real and personal property. In this sense, everyone has an estate. “Estate planning” involves implementing strategies so that your wishes are carried out in the case of your disability or death. Among other things, estate planning involves putting in place decision makers to handle financial and medical decisions when you are unable and directing your assets to your intended beneficiaries following your death in a manner that minimizes such things as taxes, state reimbursement for nursing home fees, and settlement costs.

The failure to engage in estate planning can have costly and devastating consequences. Unfortunately, many people believe that if they get sick their spouse can handle everything and if they die, their assets will automatically go to their spouse and children. While there are certain default laws that apply where there has been little or no estate planning, failing to take appropriate steps in advance can lead to many unintended consequences, such as losing significant assets to the nursing home or taxation as well as litigation among family members.

As noted, your estate includes everything you own. While certain things are obvious, like real estate and personal property (bank accounts, clothes, jewelry, etc.) other interests are also included in your probate estate at death, interests that are less apparent, such as your share of ownership in a business, the value of retirement plans and insurance policies, intellectual property, and possibly assets held in a trust you created, depending on the authority you have over the trust.

Every estate plan is different and depends on the individual’s goals as well as family dynamics, so it is difficult to generalize. However, a number of estate plans require HIPAA waivers, healthcare proxies, and durable powers of attorney to facilitate financial and healthcare decision if you become incapacitated, and wills to dispose of your assets upon death. Some individuals may also benefit for the establishment of living trusts. Living trusts are more likely to be recommended where there are tax issues, minor beneficiaries, and in the case of blended families.

If you die intestate (without a will), Massachusetts statutory law will determine who receives your property by default. Typically, the distribution is to your spouse or children, or if none, to other family members. The statutory plan may or may not reflect your actual wishes. A will allows you to change the default statutory distribution scheme to suit your wishes, as well as to make a number of personal decisions to suit your objectives that the default provisions cannot address.