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    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.


    Health Care Proxies: Create the Document, Have the Conversation

    In Massachusetts, communicating and enforcing our health care wishes is a two-step process. First, we must have the document. Under our state laws, a health care proxy must be in writing and executed properly. In cases where you want a group of people to have input, or where there is no family to step into this role, a "caring committee" is a good option to consider.

    A Massachusetts health care proxy becomes effective when a doctor determines that you are no longer competent or can no longer communicate your wishes. At that point, your health care agent can make any decision that you could have made when you were competent. While many people have a written living will, indicating their wishes for end of life and emergency medical care, it is important to remember that, in Massachusetts, this document is not enforceable.

    Once your health care proxy has been executed, it is important to move on to the second step - have the conversation. In preparing to talk with family members about your end of life and emergency health care wishes, spend some time considering just what your wishes are. Our clients have found the following sites to be helpful resources during this process:

    Couples should spend some time making sure that they understand each other's wishes. Each of us should gather those likely to be most impacted by our future illness for an honest conversation - significant others, adult children, parents, siblings, successor health care agents. While the conversation can be in person, by Skype or Facetime, or on a conference call, it is helpful to share with everyone at once. This gives those we love important information about what we would and would not want, but also gives them a group of people who have also had the conversation with us, and who can help support the health care agent as he or she is making challenging decisions.

    Ideally, each of us will revisit this conversation with our families regularly - many families plan to discuss it annually, when they are together during the holiday season.

    If you are interested in talking further about health care proxies or other aspects of your estate plan, please call us at (781) 864-9977.


    Why Everyone Needs an Estate Plan

    The surprising truth that many of us don't realize is that we all have an estate plan in place, even if we haven't created one ourselves. Every state has a set of laws that dictates what happens if a person is incapacitated or dies without estate planning documents. That means that the choice each of us faces is not whether or not to have an estate plan, but whether we can do better than the one the state provides.

    The "intestacy laws" of Massachusetts provide that when a person dies without a will, assets are distributed among a surviving spouse, children, and sometimes parents, siblings or other relatives. The assets are distributed right away unless someone who gets assets is under age 18. If a minor is entitled to assets, the probate court keeps control over the assets until he or she turns 18 - at that point, they are given to the 18 year old outright.

    Where there are no estate planning documents, the probate court makes an effort to determine, often based only upon blood relationships, who should be in charge. This may be as a guardian or conservator of the person during their lifetime, as a Personal Representative after death, or as guardian of minor children after the death of the children's parents.

    The probate court will oversee all of this to make sure that the assets are distributed in accordance with the law and by the people it deems appropriate to be in charge. The records related to this administration will be available to the public to review. After about a year, the person in charge of the estate can ask the probate court to formally end the estate and end that person's obligation to the estate and the beneficiaries.

    There are times when this "ready-made" estate plan is not right for you:

    • If you want assets used for a person after your death, but not given to them outright.
    • If you want assets divided in a way other than the laws provide.
    • If you want assets that are left to your family to be protected from creditors.
    • If you want to name specific people to fill specific roles in your estate plan.
    • If you want to pay Massachusetts as little estate taxes as possible - ideally, none.
    • If you want the distribution of your assets to be private.
    • If you want to eliminate the need to deal with the courts entirely.
    • If you have a family member with special needs, an addiction or mental illness, or who receives public benefits.

    If any of these apply, you should have a customized estate plan for you and your family. If you are interested in talking further about your estate plan, please contact us at 781-864-9977.


    Caring Committee: A Planning Tool for Clients Without Families

    Anyone who has ever sat alone in a doctor’s office and  attempted to listen to the physician’s diagnosis and suggested treatment, while simultaneously trying to remember which questions to ask, understands the challenge of coordinating ones’ own care. Never mind trying to do so while ill or suffering from cognitive impairments. Older individuals are particularly vulnerable in the health care arena. They often need assistance both with the big questions (Which treatment should I pursue?) as well as the more mundane ones (How will I get to my doctor’s office?).

    Family members at first glance are the most logical choice to assist elders with healthcare-related tasks, to advocate on their behalf, and to serve as surrogate decision makers in the event the individuals become incapacitated and can no longer make decisions for themselves. However, many elders are aging alone. Today, almost one third (28%) of all elderly individuals live alone, according to the Administration on Aging, a percentage that increases with advanced age. The combination of our increasingly mobile society, declining marriage rates and the often- referenced aging baby boomer generation ensures that the next 25 years will see an even greater number of elders living alone. These clients do not have the network of family, friends or personal connections that many of us take for granted. This begs the question, who will make decisions on their behalf?

    There are many discrete tasks involved in ensuring that we receive quality care; monitoring health, identifying care providers and medical personnel, scheduling appointments and arranging transportation, gathering medical advice, weighing information and making decisions regarding care, paying for care and ensuring proper insurance reimbursement, identifying the best setting for care, making end of life decisions – the list goes on and on.

    Even if a surrogate decision maker can be identified, he/she may decline the responsibility in the face of shouldering this burden alone. Professionals (social workers and attorneys) are often reluctant to serve as a healthcare agent for a variety of reasons. Creating a “Caring Committee”- a team of friends, family and professionals to assist the client and her proxy with the spectrum of health issues- is an attractive alternative to traditional models for healthcare assistance.

    Many clients already have an informal Caring Committee. Consider a client who lives in New York City. She has a daughter in California and a niece in Connecticut. The daughter hires an Aging Lifecare Manager to oversee the mother’s care and the niece comes in to check on her aunt on weekends. Although it’s not named such, the Caring Committee already exists for this client. Although the Caring Committee document is not legally binding, it provides the members, and all those involved a “road map”, developed when the individual is well and able to articulate and inform their decisions. Through a thoughtful and holistic process, led by a Lifecare Manager, scenarios and desires are determined, which eliminates the guessing that is often inflicted on representatives during a crisis. All clients need a network of connections to help them as they age. By naming the network as the Caring Committee, everyone is better able to recognize its importance and how it should function on behalf of the client. The Committee is intended to share the responsibilities typically shouldered alone by the client or by her appointed agent. In addition to sharing the tasks, the Caring Committee should also advise the agent in making decisions, monitor the agent’s actions and, finally, hold the agent accountable.

    As advocates for our clients, part of our job is to make our clients aware of the planning tools available to assist them in achieving their stated goals. From our past experience, we may be able to anticipate that, for some of our clients, their healthcare proxy alone may not be enough to meet their needs. For these clients, the Caring Committee can be an effective addition to their estate plan. The Caring Committee’s success can be measured in part by the quality of care the client receives and in how care is experienced for the various members. Many Committee members find the experience to be enriching. Keeping this in mind, we may find that in recommending the Caring Committee we are not only helping our clients, but also helping ourselves.

    If you are interested in talking further about the Caring Committee, please contact our office to discuss further.


    What Is An "Estate Plan" Anyway?

    Maybe you've decided that this is the year when you create an estate plan - your financial advisor has "complete estate plan" on your to-do list at your regular check ins, your friends and family members have told you they recently "had their estate plan done," or an article you read mentioned the importance of a comprehensive estate plan.

         Often, people know they need to "have an estate plan done," without knowing exactly what that means. Estate planning is a process that will, in most cases, result in the creation of certain estate planning documents. There are five basic documents that are often part of a core estate plan:

    1.    Will (and, if minor children, an Emergency Guardianship Proxy);

    2.    Revocable Trust;

    3.    Health Care ProxyHIPAA Authorization and Living Will;

    4.    Durable Power of Attorney; and

    5.    A Declaration of Homestead.

         Many people who call our office tell us they are calling because they "need a will" or "someone said they should have a trust." It is true that almost all adults in Massachusetts need a will, and many could benefit from the appropriate type of trust. However, these documents are just the end products of the estate planning process.

         During the estate planning process, you learn about the basic documents listed above (and maybe a few others, depending upon your needs), share your family's goals, values and concerns with your estate planner, and thoroughly review the type and amount of assets you own and expect to own. Your financial advisor, insurance advisor and accountant, if you have them, are often part of this process. Estate planning also continues beyond producing and having you sign those documents - your estate planner will talk with you about how to make each document, and your overall plan, most effective.

         If you are interested in talking further about your estate plan, please contact us at or 781 864-9977