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    Wednesday
    May302018

    Medicare Cards

    The Centers for Medicare and Medicaid Services recently announced that they would be issuing new Medicare cards for all program participants. The new Medicare cards will no longer include a Social Security number, instead replacing it with a unique Medicare number. The purpose of the change is to protect its members from identity theft and fraud. Medicare will issue these cards automatically. Should you be curious as to the status of your new card, you can sign up online to get alerts as to when your card will be coming (https://www.medicare.gov/newcard/). With this change comes the potential for exploitation. It is important to be wary of potential scams that may come with the issuance of the new Medicare cards. Medicare will never call you unsolicited and ask for your personal or private information. If someone asks you for your personal information, money, or threatens to cancel your health benefits, call Medicare at 1-800-MEDICARE (1-800-633-4227).

    Tuesday
    May012018

    Elder Orphans

    Everyone needs some kind of an estate plan whether they are 25 or 95. However, there are certain situations where having a properly crafted plan takes on special importance.   A recent New York Times article titled "Single? No Kids? Don't Fret: How to Plan Care in Your Later Years" highlighted the problem facing a relatively new and quickly growing demographic.  
     
          According to a recent study led by Dr. Maria Torroella Carney, chief of geriatric and palliative medicine at Northwell Health system on Long Island, 22% of people 65 and older either are childless or have children who are not in contact. These single childless elders, so-called "elder orphans," face many additional risks of aging alone. In fact, it is noted they are at a higher risk for medical problems, cognitive decline, premature death and elder abuse. Given these additional risks, it is important these elders take additional planning precautions to ensure they remain independent and safe as they age.

        Elder orphans can reduce these risks by creating their own support structures. For example life care managers, care managers are typically social workers who provide a wide range of services to assist elders as they age. The care manager visits the elder periodically - be it to bring them to medical appointments, to help them pay bills or even help them choosing where to live. Beyond coordinating care and assisting them with other tasks, the care managers provide the necessary support to enable clients to age independently.

        Clients can implement a document called a Caring Committee. Caring Committees create a team generally comprised of a professional care manager, your health care agent, attorney-in-fact, friends, family and financial or legal advisors to ensure your care needs continue to be met as you age. Committee members work with clients to understand their wishes and then work together to ensure these wishes are being followed. This can be especially important for elder orphans. Generally, the committee would meet once a year. If the client becomes incapable of fully directing their own care, the committee would meet more frequently, with the client participating as much as possible. The group develops a plan; the care manager follows up regularly to ensure that it's being followed. The committee creates a team of support for those elder orphans who may not have their own network. The committee is especially important for people without close family. The committee provides the structured support to avoid the burden of one person serving alone as health care proxy or durable power of attorney.
     
         Although many clients include a trust in their estate plan, elder orphans often include language in their trust directing their attorney to use funds to ensure optimal care and maintain independence even if this is the most expense care option. A client who is at risk of cognitive decline could also limit their ability to access the trust funds directly as a strategy to protect themselves from elder abuse.
     
         The New York Times article outlines a multi-pronged plan that includes other suggestions such as senior-friendly housing, home-delivered products and phone "Apps" that could be useful for elder orphans. One application, EyeOn App, signals the elders' chosen contacts if they do not reply within a half-hour to scheduled cellphone alerts. Similarly, EverSafe, is a financial security program, which monitors accounts for unusual spending and alerts the client or a trusted advocate of possible fraud. These tools allow the elder orphans to maintain independence, while simultaneously providing additional protections.
     
         Through appropriate estate planning documents, the assembly of a team of elder law attorneys and care managers as well as by advancing technology, we can help to ensure these aging elders' wishes are met and they are protected should they become incapacitated and unable to care for themselves.

        For the full New York Times article, "Single? No Kids? Don't Fret: How to Plan Care in Your Later Years," click here.

        If you have questions on how this topic may relate to you, please feel free to reach out to us at 781 864-9977.

     

    Tuesday
    Apr102018

    Partnership Audit Rules

    The Bipartisan Budget Act of 2015 (the “Act”) sets forth new partnership audit rules that became effective for most partnerships (and limited liability companies taxed as partnerships) on January 1, 2018. The key components of these rules are as follows:

    1.       The IRS can determine audit adjustments at the partnership, rather than the partner, level.

    2.       Each partnership must designate a “partnership representative” who will be the partnership’s sole representative in connection with an audit or other procedures.

    3.       The partnership is responsible for any underpayment even if the partners have changed.

    A partnership meeting certain criteria can opt out of the new rules on a year-by-year basis. Additionally, under the new rules, the partnership may make an election to shift the underpayment burden to the partners instead of the partnership. However, this election must be made within 45 days after receipt of the final partnership adjustments of a reviewed year.

    Partnerships should consider amending governing documents and strengthening contractual provisions related to the partnership representative; for example, the partnership may want a provision in the operating agreement to require the partnership representative to: (i) provide information and/or notices relating to federal income tax audits or judicial procedures and/or (ii) obtain consent from the partners before acting in any way that may bind the partnership.

     If you have any questions related to this topic and how it may affect you and your business, please call our office at (781) 864-9977.

    Disclaimer: This article has been prepared for informational purposes only. This article is not intended to provide tax or legal advice and we urge you to consult with your tax advisors regarding the application of the Act to your particular situation.  

    Wednesday
    Feb282018

    Dementia-Focused Planning

    Every 66 seconds, someone in the United States develops dementia.  In fact, the number of people living with dementia worldwide is projected to increase from 47 million in 2015 to 132 million in 2050.  These numbers are staggering and will leave many families strained, both financial and emotionally.  Cognitive impairment can result in self-neglect and poor business or investment decisions.  In addition, we often see estate plans turned upside down at the end of life as a consequence of dementia. 

    Health Care Proxies and Living Wills have become a standard part of estate planning.  These medical directives, however, tend to focus on end-of-life decisions – whether to withdraw or withhold life support.  Although these documents are important, they are limited.  The recent rise of dementia in our society illustrates the need to do more.

    Our office has begun to address the limitations of the standard directives with other planning tools focused specifically on dementia and declining cognition.  One instrument we have implemented is the Caring Committee.  Caring Committees help to supplement traditional directives by creating a team generally comprised of a professional care manager, your health care agent, attorney-in-fact, friends, family and financial or legal advisors to ensure your care needs continue to be met as you age.  Committee members work with you to understand your wishes and then work together to ensure these wishes are being followed.

    In addition to Caring Committees, our office has begun to tailor trusts specifically for clients with dementia diagnoses.  For example, we can include provisions requiring that funds be used toward obtaining optimal care in an independent setting as well as limiting the client’s ability to change the ultimate disposition or limiting their direct control in decision making.  This allows clients to build into their estate plans protections against third parties exploiting their cognitive decline.  

    We have also begun to discuss with clients how they want their medical and personal decisions made on their behalf in relation to the onset of dementia.  A recent New York Times Article, “One Day Your Mind May Fade.  At Least You’ll Have a Plan,” discusses another tool to plan for cognitive decline – a dementia-specific advanced directive.  The article discusses the complexities of a dementia diagnosis in terms of planning.  Specifically, it outlines the complications in determining the point at which dementia patients can no longer direct their own care – a much less predictable or obvious threshold than that of the standard used in the traditional directive.  Unlike a standard medical directive, dementia-specific advanced directives can be tailored to the course of the illness.  The proposed directive plans for what can be a very slowly-progressing and patient-specific disease, allowing clients’ goals and preferences to change over time.  By outlining differing stages of the disease and calling for the persons’ main goals at each differing stage, the dementia-specific advanced directive gives people a sense of control over what is often an unpredictable and uncontrollable illness.

    It is important, however, to remember these medical directives, however important, do not replace the need to talk about the potential of cognitive decline.  Ellen Goodman, founder of The Conversation Project, emphasizes the importance of your designated agents understanding what you value and what is important to you.  These dementia-specific advanced directives, along with other planning tools such as the Caring Committee and cognitive decline specific Trust provisions, should be used as a means to facilitate these conversations and to document your intentions for your agents and supports as a reference for when you can no longer articulate such.

    If you have questions on how this topic may affect you, please feel free to contact us at (781) 864-9977.

    To access the full article and sample directive visit :https://www.nytimes.com/2018/01/19/health/dementia-advance-directive.html.  To read more about the Conversation Project visit: https://theconversationproject.org/.

    Thursday
    Sep282017

    MassHealth: Potential Changes to Pooled Trusts

    The Massachusetts Medicaid program – MassHealth – has strict financial eligibility criteria.  For a single individual his or her assets cannot exceed $2,000.  In assessing financial eligibility, MassHealth also looks to the means by which the person spent-down his or her assets – penalizing gifts by imposing a one month disqualification period for every $10,000 gifted in the last five years.  Funding a pooled charitable trust, however, is not considered a gift for MassHealth eligibility purposes.  For this reason, pooled charitable trusts are a common means of preserving assets so they remain available to improve the quality of life of a MassHealth recipient.  In Massachusetts, there are several pooled trusts managed by non-profit organizations.

    The assets in the pooled trust must be used exclusively for the benefit of the beneficiary.  The funds are typically used for supplemental needs not covered by MassHealth.  Commonly this includes transportation to and from the nursing home, companionship services, recreational activities, occupational and physical therapies not otherwise covered, uninsured dental costs, additional nursing home expenses such as cable and personal and household items.  Pooled Trust funds enable the disabled elder to age in place by supporting home maintenance, real estate taxes and other expenses that public benefits do not cover.  After the person dies a percentage of the assets remaining in the trust go to the non-profit organization managing the trust.  The balance of the trust is paid to MassHealth to reimburse their payments for care.  If there are remaining funds, they can be distributed to the family, however there are rarely funds remaining.  Funding a pooled trust allows an individual to immediately qualify for MassHealth, while ensuring he or she has funds available to meet needs not covered by public assistance programs.

    Unfortunately, MassHealth proposed new regulations that would prevent disabled seniors over age 65 from funding pooled trusts.  The regulatory change would end the twenty-year policy of allowing disabled elders to use special needs pooled trusts to maintain their quality of life.  The regulatory change will affect seniors who already live with a wide range of physical, mental, cognitive and neurological conditions.  The proposed regulations will also harm MassHealth – which is reimbursed for payment care from the funds placed in the pooled trust.  This recovery even extends to MassHealth benefits provided prior to the establishment of the pooled trust.  Annually this amounts to millions of dollars for the Estate Recovery Unit of MassHealth.

    In response to this proposed regulation, the Massachusetts chapter of the National Academy of Elder Law Attorneys, along with other pooled trust organizations, have encouraged state senators and representatives to file legislation to ensure that disabled seniors 65 and older would continue to be able to utilize these trusts.  The legislation is in the Health Care Finance Committee and had a public hearing on May 2, 2017.  House Bill H2074 and Senate Bill S629 propose to stop these damaging regulations.  To support this legislation, and in turn prevent the proposed regulations from being implemented, call your State legislator and ask them to contact the Health Care Finance Chairmen to move the bill out of Committee and continue the policy that has been benefiting disabled seniors in the Commonwealth for many years.