think you would get thank you well good afternoon and thank you for being here i'm attorney john hope of hope elder law in watertown and today we're going to be concentrating on some important issues to help you stay in charge of your life as you grow older the first part of the talk will deal with a state planning documents that are very helpful to for you to have and the second part of the talk will concentrate on what what document excuse me the second part of the talk will concentrate on information that you already have paperwork and other information that it would be important for you to keep organized so that you can help  help stay in charge of your life and help other people help you so again the first part of the talk will be concerned with legal estate planning documents the first set of documents we're going to talk about  called the four legal documents for competence planning these are documents in which you appoint people to be able to assist you with financial and health care decision making should you need assistance with that as you grow older now if you don't if you don't haven't if you don't have these documents appointing giving people legal authority to assist you then things can happen in your life that you might not want to have happen the state can end up making decisions for you about what happens to your property and the state can end up making health care decisions for you as well so it's very important that you  that you have these documents are not terribly expensive appointing people that you trust so that these individuals that you're appointing can assist you and they would know what it is that you want done and you would trust them to carry out your wishes as opposed to having some stranger appointed by the state making decisions for you so the first document which many of you have heard of is called a general durable power of attorney this is a document in which you appoint one or more individuals to be able to assist you with financial matters it's been said that this is the single most important document to have what does the term durable mean a durable power of attorney means that the document stays in effect even after you lose mental capacity so you have to have what's called legal capacity to sign the document which in essence you understand what's going on in your life and you know who the president is and what day of the week it is and that sort of thing and you know the people that you want to appoint and so you you durable power of attorney and then later if you lose mental capacity either due to an illness such as dementia or or just old age frailty can no longer think clearly then you've got someone in place to be able to act for you the term durable means that the document remains in effect even after you lose capacity now are all powers of attorney the same no they're not there are there is special language that can be put into a power of attorney document that will be helpful in certain circumstances to help facilitate the protection of your house or your money should you at some point in the future need to apply for mass health to pay for nursing home care so you can you can go to staples and probably buy a power of attorney document for ten dollars is that going to be the right document for you maybe it is maybe it isn't but you won't you made you may not be aware of of the issues that may face you and you won't know for sure whether it contains the right kind of language to asset protection at some later point now what happens if you don't have a power of attorney in place and you lose capacity to manage your own finances in that case someone that you someone who wishes to assist you will have to file papers in the probate court to become appointed as your legal concert reader and this is a an expensive process and a time consuming process in addition one of the bad things that can happen in the in the course of having someone become your conservation or is that the court may decide that they want to appoint an attorney to represent your interests so you've got your friend or your family member who's who's seeking appointment as the conservation are and the court may decide that for your own protection you need a court appointed attorney that court appointed attorney will be randomly selected off of a list of attorneys who have signed up to take these appointments now that attorney may have very different ideas about what's in your best interests then your family or you would have in a case that i'm familiar with that i was involved with last year involving a husband and wife where the husband did not have a power of attorney needed to enter the nursing home to receive long term care services  wife had to petition the court to be appointed as the conservation or and because we wanted to transfer the husband's ira to the wife so that the husband could become eligible for mass health benefits to pay for his nursing home care the court decided that the husband needed a court appointed attorney well that court appointed attorney decided that the that treated the family as though they were criminals and objected to the transfer of the husband's money to the wife even though that is a standard operating procedure when working with a husband and wife and needing to get the husband on to mass health so the court appointed attorney filed all kinds of legal papers as part of the conservation ship action requiring the wife to hire an attorney expert in in what's called litigation or lawsuits in the probate court so this resulted in a delay of the husband being able to access mass health benefits so between having to private pay at the nursing home and having the wife having to pay for these expert litigation attorney and so on and the court appointed attorney getting paid by the family per court order about one hundred thousand dollars of this family's money was wasted now this was an intact family a close knit family with a long history of loving and caring there was no dysfunction in this family at all so this was an absolute travesty that there was a court appointed attorney who took it upon herself to in poe's her own ideas about what was in the husband's best interest so the reason just a moment the reason i'm explaining this is this is just a cautionary tale about the kinds of things that can go wrong if you don't have a power of attorney and that power of attorney that the husband would have needed to have would have needed to include some of the special language to allow the transfer of his ira to his wife and an elder law attorney can certainly advise you on the correct language to have in a power of attorney document so rather than the husband spending three hundred dollars for a power of attorney the family's had one hundred thousand dollars of their money wasted now admittedly this is a fairly extreme example that isn't your typical kind of situation but this is a true life story that happened right here locally  so with these documents it really is a case of a stitch in time saves nine if you get these documents in place you can our yourself and your family to to you know on our your wishes to help stay in charge of your life i see we remaining amount you're correct you can't transfer an ira without liquidating it the beneficiary as all explained later in this in this presentation has to do with who gets the money in your ira when you pass away so this was a situation where the husband and wife were both alive the husband had an ira there's an asset limit the husband can't have that ira and beyond mass all mass health permits that ira to be liquidated and the net proceeds transferred to the wife so the husband can get on mass health but again this attorney decided that she knew better and basically ended up you know dragging this out in addition the wife had a weak heart and did she need this additional level of stress in her life for months and months and months knowing that her family's money was being wasted by this attorney i think not so the next document we're going to talk about is called the health care proxy and you might have noticed i'm following right along in my hand out and for those of you who may be watching this  broadcast later on television feel free to contact my office and we will be happy to either mail you or e mail you this handout with all this information in it the phone number for my office is six one seven nine two six eight five four nine again six one seven nine two six eight five four nine that's hope elder law in watertown so moving along the second legal document of these for competency planning documents is called a health care proxy what is a health care proxy do health care proxy allows you to appoint one or more individuals to be able to make medical decisions for you if at some point in the future you become unable to make or communicate informed health care decisions so typically in the health care proxy you would name a primary person and one or two alternate one does your health care proxy take effect the health care proxy is is a fact of when you sign it but the person that you've named to make medical decisions for you doesn't get to begin making medical decisions for you until some point in the future when your doctor decides that you need help making decisions and the technical standard is that if you become unable to make or communicate informed healthcare decisions then your doctor will put  to activate the authority of your healthcare agent to make medical decisions for you the health care engine is the name of the person is the name for the person that you've designated in your health care proxy to be able to make decisions for you now let's suppose that your health care proxy has been activated so you have a terrible infection and you're in the hospital and you can't think straight for a couple of days the doctor activates your health care proxy but suppose a couple days later the antibiotics have kicked in and you're feeling well enough again to make your own decisions well what happens is in that case if you regain capacity to make your decisions the authority of the health care agent will be suspended you'll be making your own decisions again  typically the treating physician again in writing would indicate that the patient is making medical decisions again i guess one small detail that i forgot to mention about about the power of attorney is that  few document we talked about a moment ago is that if you change your mind you can always sign a new one or or revoke or cancel your power of attorney document the same is true with your health care proxy if you change your mind as to who you want to appoint to making i'm wondering there's some pretty loud music coming from next door would it be possible that i asked them to turn that down  that we had a question going back to the durable power of attorney whether whether it expires in other words does it does it need to be renewed every five years for instance well to address that  n two thousand and nine massachusetts passed a law that said that the mere passage of time does not cause a power of attorney document to become invalid however certain financial institutions are wary or shot or nervous about on uring a power of attorney that's too old so normally if if in that case if the person is still legally competent which begs the question why would the power of attorney be doing something if they're still legally competent but it may be possible for the person to sign a new one if it's not possible for the person to sign a new one then there's something called an affidavit of power of attorney whereby the agent who's been appointed to act under the durable power of attorney can sign an affidavit stating that to the best over their knowledge the power of attorney has not been revoked and is still in full force and effect and usually that will take care of that of that issue now back to the health care proxy one thing that can happen is that you may have you may have signed a health care proxy at one point maybe you went into a hospital to get a procedure done and they asked you if you had a health care proxy document and if you didn't have one with you they said oh well here's our form fill one out right now and that way you'll have one well the thing to know is that every time you sign a new health care proxy form it revokes the earlier form that you sign so if you go to see an elder law attorney who may have put some extra fancy language in your health care proxy that's not in the free state form if you then go to the hospital and they hand you the freestate form and you fill it out that revokes the one that you did with the attorney so  typically attorneys are able to forward a copy of the document that they've produced for their client either by fax or by e mail so if you have one that's been prepared by your attorney if you didn't think to bring it with you to the hospital or the doctor's office  you can always ask them to call your attorney's office and the attorney will be happy to fax or e mail a copy of your document to the medical provider now one question that people have is don't husbands and wives automatically have authority to make medical decisions for each other just because they're married while technically they don't in certain environments the husband wife relationship is on er but if it if push comes to shove especially in an end of life medical situation while someone is in the hospital then you may be surprised to learn that if your husband or wife is in the hospital and they haven't appointed you in a health care proxy document that the hospital may decide that you don't have the ultimate authority to make you know end of life treatment decisions for them so it's a good idea for husbands and wives to appoint each other and then if they have children to a point there are children in the document as alternates so what happens if you don't have a health care proxy document in that case of someone if you have lost the capacity to make your own medical decisions someone will need to go to the probate court to seek appointment as your legal guardian for health care decision making as with anything in the probate court this involves time and money it may also involve the probate court appointing an attorney for you and again same kind of scenario is where that conser matter that i talked about the court your court appointed attorney may have a very different idea of what's in your best interest the court appointed attorney is supposed to determine what you would want done in certain search situations and to try as best as possible to honor your wishes but there really unfortunately isn't anything to prevent that court appointed attorney from making up their own mind as to what's in your best interest and causing a lot of expensive and time consuming delay as part of a guardianship process i mention the state does have a free health care proxy form it is available online you can google that massachusetts health care proxy form now the form that i charge that i prepare for my clients i charge two hundred dollars for we have a little bit of extra language in there that's helpful in certain circumstances but if you can't afford my fee don't let that stop you from getting a health care proxy get one fill out one of the free ones from the state you can get that at your doctor's office at a hospital you can get it online and it needs to be signed in the presence signed by you in the presence of two witnesses who cannot be your family members and cannot be the people that you're appointing in the document so again the freestate form does not even need to be notarized it simply needs to be signed by you in the presence of  two witnesses now the next occupant the next document to have as part of these four legal documents for competence planning is called an advance directive or living will now this is a document that states your preferences for end of life medical care some health care proxy documents prepared by attorneys attempt to combine health care proxy document with language from an advance directive so if you read that that attorneys health care proxy that they prepared for their client somewhere in there it talks about well you know if it's really my time to go let me go peacefully while i like to do them in two separate documents and i'll tell you why in the health care proxy document i just want your doctors the doctor to know who you've chosen to appoint to make medical decisions for you if you can't make it i don't want the doctor reading some language in your health care proxy that makes them think oh well look i don't have to try too hard here it says right in their health care proxy they want to go anyway no i want the doctor to inform your health care agent of what all the options are that i want your health care agent to make a decision as to what you would or would not want for and the life medical care so the advance directive document that i prepare is not a legally binding document i'm going to talk in a minute about a document that is legally binding but the use of the document i prepare is so that if your health care proxy has been activated so that your health care agent whether it's your spouse or your trusted child is making end of life treatment decisions for you if if your health care agent says no mom doesn't want intubation she doesn't want to tube down her throat she doesn't want this she doesn't want that then then your health care agent can pull out the advance directive document that you sign show it to the doctors and the doctors are more likely to say ok we see that she doesn't want this and we're going to let her be peaceful  we'll this is well an advance directive living will prepared by an attorney will that will that be on heard by the nine one one emergency responders who come to your house the answer to that is no there's a different form that i'm going to talk about in just a few minutes that you need to have if you want to be allowed to pass away peacefully in your home so the fourth document of these four documents for legal confidence planning the the the new employer's health insurance would have to cover preexisting conditions for the new employees that's the health insurance portability part in two thousand and three the privacy regulations that's the accountability part came into effect that make it so that doctors hospitals any medical provider cannot release your confidential medical information in less they have written authority to do so and that written authority to release medical information is in the form of a signed medical release warm that the provider has so if your if your if you're legally competent of course you can sign that that release form yourself so if you go into the hospital to have a procedure done they're always going to ask you who is it ok if we share information with and they're going to take that down and write it down and then that will be that but if you are not legally competent to sign a medical release form then how can you or your children your spouse get information about you while the under the the hipaa authorization and release form that i prepare  lists the individuals that you are authorizing to be able to sign a medical release form on your behalf so how does the hipaa authorization form that i prepare differ from a health care proxy form the health care proxy form is where you're appointing someone to be able to have authority to make medical decisions for you but that person that you're naming in your health care proxy does not have immediate authority to access your health care information it's only once your doctor decides to activate their authority to make medical decisions for you that the person the agent in your health care proxy has authority to access your medical information in contrast the document called that i prepared called the hipaa authorization and release is effective immediately and allows the people named in it to sign a new medical release form anywhere  anyplace anytime so that they can never be told oh i'm sorry that's confidential we can't tell you how your mother father brother sister you know son daughter are doing because we don't have authority to release that information so a practical application of having this the hipaa authorization form is that something i hear quite frequently at my practice is that the son or daughter of of their elder parents will have called a new doctor's office to make an appointment for their parents to go and see you know maybe a specialist or something and sometimes that doctor's office will say well is this appointment for your mother or your father well yes it is oh well then they need to call and make this appointment because we don't have legal authority to speak to you about their medical information at which point the son or daughter who's named on one of these hipaa authorisation say well actually i've been appointed as my mom's hipaa agent and if you'll be so kind as to fax me one of your medical release forms i will be happy to fill it out and fax it back to you along with a copy of the hip authorization document prepared by the attorney that authorizes me to sign your medical release form and then the son or daughter will have legal authority to communicate with the health care provider the other aspect of the hipaa authorization is that all the individuals named on it have immediate authority so in the health care proxy it's only the top person in the list who's acting who's you know been designated to act as the agent who would have authority so typically when i prepare this document you know people would typically name all their you know if i'm preparing it for an elder they would typically name their spouse and all of their adult children in it unless of course one of their kids is a troublemaker and then they might leave that kid off but but other than that they they would typically name all their kids and this is comforting for the kids because now they have a piece of paper that they know no matter what happens to their parent they cannot be denied access to medical information about their  and so i stated that it gives the authority to sign a new medical release form on behalf of the person who signed the hipaa authorization document so you might you might be signing an authorization if you're the hipaa agent just to release the information to yourself but as asked in the question you can also authorized the release of that information to third parties so if you are on the hipaa document and you're filling out a medical release form for for your mother or father say you can not only authorized the release of the information to yourself but you can authorize the release to third parties as well other people or other health care providers and so on and so forth so that the next document i'm going to talk about is not a document that i prepare but it is a very important document to know about this is a  document that if you want to be ill if you want to be allowed to pass away peacefully at the end of your life it's a good idea to have one of these documents the document calling about i'm on page four now called sed form an o l s t and that is an acronym abbreviation that stands for medical orders for life sustaining treatment now an earlier version of this form that many people are familiar with was called a d n r a do not resuscitate form which was a form that allowed you to indicate that if your heart stopped or if you stopped  breathing that you did not wish to be resuscitated that was an official state form that you or your healthcare agent had to sign and your doctor had to sign it too this is not a form that can be prepared by an attorney it's an official it was an official state form the d n r so starting in two thousand and fourteen the state rolled out a new version of that form that's the mole stood for the massachusetts medical orders for life sustaining treatment which does the same thing as the d n r form in other words you get to indicate that if your heart stops or if you stop breathing that you do not wish to be resuscitated but it also go you also have the ability to to specify other things that you do not want such as perhaps intubation having you to put down your throat to feed you and certain other things  the idea behind the most form was to solve particular problem which is that as someone in an end of life situation may may go from one health care facility to another to another each time the elder got to a new health care facility the family would be stuck trying to re explain to the new health care facility what mom did or did not want and so the feeling was that by having this four page form in which the elder gets to specify various things that they do or do not want that by having a uniform and legally enforceable way of transmitting that information that the mole form could go with the elder from one health care facility to another to another and that hopefully that would help ensure that their wishes were honored all right no power of attorney is for financial matters and so that's an interesting question what if you fill out a mole form and then your health care proxy later is activated i'm thinking the  so the question had to do with why when would you want to sign a mall's form and so the the the mall's form is usually something that you don't want to sign until you've got a pretty serious illness and you know that you know you're near the end of your days it's not it's not something you sign years ahead of time in contrast the document that i prepare called the advance directive is something you can sign any time because it's not legally enforceable it's really my document is just a tool so that if your health care agent is making decisions for you and they know that you don't want something and they decide that that you that it's not in your best interest to have it then your healthcare agent can pull out the appointed your trusted children to be your agents you're in a terrible car accident you're not going to recover then at that point if you're if you're no longer making your own medical decisions then you know your health care agent your daughter can signed a mole form while you're legally competent and then your healthcare agent comes along later and says oh no that's not what she wants then i'm not sure it's not i don't know the answer as to whether your health care agent can revoke your mall form for you if you signed it yourself while you were co get the health care agent can only act on your behalf if you are no longer competent to make your own medical decisions so you make your own medical decisions as long as you can so  so this is a form that you can learn more about by googling on online if you go to google and you type in massachusetts mall form you'll come to a website that's that's put out by the executive office of elder affairs in the department of public health you can also believe get this form from your doctor's office or from a medical provider the question had to do with once you've signed them all swarm what do you do with it while it might be a little macabre but you can post it on your refrigerator door if you're living at home because the e m t s are trained to look for the refrigerator door when they go rushing into your house that they're not trained to look in your filing cabinet or on the shelves or anything else but they are trained to take a quick look at your refrigerator door to see if one is there  point your children are going to have to call nine one one to report that you've expired and then if you don't have one of these forms what's going to happen is as soon as they show up they're going to grab you off the sofa throw you on the floor get out the paddles start jumping you with the paddles stuck pump in your department reported to the police department that the child had not called nine one one immediately when the elder expired and the police department followed up and you know when the when the daughter explained to the police department that no mom did not have one of these forms because she didn't believe in seeing doctors at all and she was stubborn attacked and she didn't get one of these forms but she did not want to be resuscitated that you know the police department made a judgment call and said ok there's no foul play here but but the police department did follow up on because the fire department did report to the police that the child had not called nine one one immediately so you know if you don't have one of these forms and you want to pass away peacefully at home you're potentially exposing your loved ones  legal liability unnecessarily so how crazy is that that's a good question the question was what happens if you're traveling and you're out of state no one's asked me that question before i don't yes the health care proxy would be honored to document a power of attorney a health care proxy document to have authorization these are documents that are supposed to be given what's called full faith and credit by other states so as long as the document was was validly exit cupid signed in the state where you live it's supposed to be honored in any state that you're in yeah i'm not an expert i'm here as a massachusetts elder law attorney so my focus is is fairly limited to massachusetts so the question was what happens if you're traveling abroad the answer is i don't know well if you have your if you have your attorneys the question was if you're traveling do you need to bring all your legal documents with you and i would say that as long as you have the business card of your attorney in your wallet and a little note on there that says any problems call my attorney then then the attorney can you know intervene and for documents wherever and so on so far we've talked about documents that help you while your alive documents in which you appoint people to make decisions for you or the form in which you you retain control of your of your choices for end of life medical care now we're going to talk about a legal document to transfer your property to others when you pass away so the there are several documents that can assist with the transfer of property when you pass away the first one is called a will now many people most people have heard of a will but many people don't understand exactly what a will is a will is a set of instructions to the probate court on what to do with a person's probate property when they pass away so a will there's not necessarily control all of your property when you pass it only controls your probate property so what is probate property probate property the best way to think about probate property it's property owned individually in somebodies name when they pass away that does not already have some other mechanism established at law to transfer the property to the person who's going to inherit it so first i'm going to give you some examples of things that are not probate property if you have a joint bank account or if you own a piece of real estate jointly with the rights of survivorship then when the first person when the first joint owner passes away it's not a probate asset in their estate because under the laws of joint ownership of property the property passes automatically to the surviving joint owners now there's one little exception to that which is that if you have a bank account and you put one of your kids on there for purposes of convenience so they can sign your checks and transact business for you then you might or might not want that whole bank balance to go to that one child you might actually want that bank account to be distributed equally say through your will to all of your children so you can make a notation in a will as to whether you want your joint bank accounts to be considered joint property and passed to the surviving joint owners or whether you want them to be considered as probate property now what about a financial account or life insurance that has a beneficiary designation form filled out for it while even if the account or the life insurance policy is owned individually in your name the beneficiary designation form is that other mechanism established law to transfer that asset when you pass away so again a financial account or a life insurance policy that has a beneficiary designation form filled out for it is not a probate asset because it passes automatically pursuant to the beneficiary designation what about property in a trust well property in a trust is not a probate asset because it is owned by the trustee and not by an individual the next section is all about trust so i'm going to speak about trusts next so what is you've heard people say oh i had to probate my mother's will what is probate probate is the administrative process at the probate court through which probate assets have to pass in order to determine who the new rightful owner is of those assets and remember a will is a set of instructions to the probate court on what to do with the persons probate property now one of the questions i get asked as well is it a good idea to try to avoid probate in other words if there's ways to not have my property have to go through this time consuming process at the probate court and pass directly to my children wouldn't that be a good idea a lot of times it is helpful or useful to avoid probate so you can use beneficiary designations you can put property in a trust you can have joint ownership in some cases though joint ownership is not without risk in other words if you have a large bank account and you think oh well i'll add my kid to that bank account that way it'll be joint property when i pass away it won't have to go through probate the the risk is that when you have joint ownership of an asset the creditors of any of the joint account owners can seize the entire asset so if you you know you've got a two hundred thousand dollars savings account and you add your son mike to that account because you think well that's great i'm going to avoid probate and then mike's involved in a traffic accident with a fate ality in a million dollar liability that he doesn't have insurance for guess what his creditors get to go in and take your two hundred thousand dollars so so a better way to avoid beneficiary designations and if you want mike to be able to access your bank account to help you with things then appoint him in a power of attorney document because then he'll have authority to help you with your bank account but if he gets sued it won't be his money he won't have an ownership interest in the account so the question is what is a tio d a t o d is a form of beneficiary designation called transfer on death another designation for a beneficiary on some accounts is called p o d that's payable on on death so those are just different forms of beneficiary designations those will help you avoid probate because then the assets will go directly to the beneficiaries all so something that we're we're not talking about today but that i'm happy to speak with you privately about is called a state taxes a state taxes sometimes called death taxes are a tax on the person who passes away for the privilege of them leaving their property to other people and in massachusetts if you pass away and with more than a million dollars worth of property then you maybe if you are leaving more than a million dollars or property to someone other than a spouse husband or wife then you may be subject to paying some massachusetts as state taxes we're not we're not so concerned about federal state taxes anymore because now you can pass away with up to five point five million dollars of property without having to pay any federal state tax so estate taxes are  beyond the scope of this discussion but the question that the gentleman posed here was if i'm avoiding probate by putting beneficiary designations does that mean i'm somehow also avoiding a state taxes the answer is no a state taxes that's again something that the the massachusetts department of revenue gets to gets to you know charge you for if you're leaving more than a million dollars worth of property whether it's probate or non probate property to others and probate is simply the legal administrative process through which certain assets need to pass in order to get to the new rightful owners so the next the next type of legal document that we're going to talk about is called a trust so what is a trust and how can it be helpful a trust is a legal contract entered into between the person creating the trust and one or more other individuals who are called trustee s who agreed to manage the trust property and do what it says in the trust document  the trust property for the benefit of a third group of people called the trust beneficiaries so when you have a trust there are basically three positions in a trust there's the person creating the trust there's the person serving as the trustee who is like a property manager and there's the person people or persons who are benefiting from the trust property called the trust beneficiaries now when can a trust be created a trust can either be created during a person's life time in which case it's called a living trust or a trust can be created through language in a person's will in which case it's called a testamentary trust sometimes you heard a will referred to as a last will and testament so again a trust that's created only through that's created through language in a person's will does not exist while the person is alive it only comes into being after the person's will is probated after they passed away and that's called a testamentary trust so what are what are the  different kinds of trusts so a common type of trust is called a living revokable trust this is the most common type of trust this is a trust in which you perhaps while you have what you know while you're of sound mind and you have legal capacity you're decide ok i'm going to create a trust and the reason why you might be creating this trust is to avoid probate might be to incorporate some estate tax avoidance planning techniques involving husbands and wives and it might also be to help facilitate the management of your property should you become incapacitated during your life time in a living revokable trust you might be the person creating the trust you might also be the trustee and you might be the lifetime beneficiary so you might be thinking well gosh if i'm the person creating the trust i'm the trustee managing the trust and i'm the person benefiting from the trust how is that any different than if i just continue to own the property individually in my own name while the difference is that for there to be a valid trust the trust has to spell out who's going to be the successor trustee if you lose pasadena or die and can no longer serve as the trustee and the other component of a valid trust is that the trust has to say what happens with the trust property after the lifetime beneficiary passes away so the reason a living revokable trust avoids probate is that even if you are the trustee you own the trust property in what's called a fiduciary capacity as the trustee and not as an individual and the trust says what to do with the trust property after you've passed away but it is the question is if you create a living trust and you transfer your assets into it does that protect the property from your own creditors the short answer is not in massachusetts there are several states where you can create your own living  transfer your property into it and have it be protected from your creditors massachusetts is not one of those states another common questions with a living revokable trusts is well if i have my property in one of these revokable trusts and i end up in the nursing home and i want to apply for the state to pay for my nursing home care so my kids can have my money will my revokable trust protect my property and the short answer is no  revokable trust means that the person creating the trust can revoke or change the trust cancel the trust basically reach into the trust pull all the property back to themselves at any time so therefore that it's this for purposes of mass health medicaid they treated as though you still own the property and therefore it does not protect your property if you're trying to apply for mass health another kind of trust is called a living irrevocably trust an irrevocably trust is where the person creating the trust gives up the right to amend change or cancel the trust so they're basically giving up control over it's over the ability to change the trust and so a a living irrevocably trust is a type of trust that could be used to protect your house or your money if done five years ahead of time so that if you do end up in the nursing home at some point you will you would be eligible for mass health to pay for your nursing home care now the state right now is challenging these kinds of trusts as you can imagine because about of the about a third of the massachusetts state budget goes to pay for the mass health medicaid program and so there's a lot of people that think well why should people that have property be able to transfer it into a trust five years ahead of time so that their kids can inherit it while the taxpayers of massachusetts pay for their care in a nursing home well that's beyond the scope of the discussion here today in terms of the politics of all that but but suffice to say that right now it's still legal to use a living irrevocably to try to protect your property ahead of time if you want to however many people choose not to because you're basically have to give up control over your property another g can't protect it and still have full control over it if you're trying to make it so you can qualify for mass  that if you create a trust for the benefit of your children you transfer property into it and then the and one of your kids gets a divorce ken ken the divorce can the judge in the divorce action reach into that trust and grab some of that property and say give it to your child's spouse so the short answer is that the court that in a divorce action the judge can't reach into your trust as long as it's properly drawn however the judge might get to say well look mike you know you're going to be inheriting a million dollars from your family you've got five hundred thousand dollars of marital assets with you and your wife so i'm going to give that five hundred thousand dollars to your wife because you have a million dollars coming to you from mom's trust down the road so the judge can take into account those assets however the judge cannot cannot actually reach into the trust so in certain cases where we know that a divorce may be pending some times will actually leave the kid out of the trust and give their share to one of their other kids with the understanding that if that kid receives that share down the road he'll build return it to the other child but which is legal it's just you know you have to plan a plan according to the circumstances i'm going to talk about several other kinds of trusts that are helpful in a general way just so you'll be aware of them they're described here in the handout and then i'm going to i'm not going to have time to go in great detail into the second part of the presentation which has to do with that well unless unless my moderator tells me to going but the the the  last part of my presentation had to do with a list of papers and information to keep to stay in charge of your life as you age then i have a list of about three and a half pages of various information that it's helpful for you to keep and have organized and again if the time runs out on the presentation and you're watching this on rebroadcast on television and you'd like a copy of this handout please do call my law facade six one seven nine two six eight five four nine all be happy to get this material to you so continuing on with with different kinds of trust some on page six now at letter c talking about a kind of trust called a special needs trust this is a trust into which a disabled person can transfer their own assets prior to the age of sixty five and in in with the purpose of making those assets no longer accountable if they need to apply for various kinds of public benefits such as say mass health or mass health to pay for long term care a special needs trust is where a disabled person can transfer their own money into this kind of a trust and then have it be not countable for purposes of eligibility for their public benefits  the next kind of trust is called a supplemental needs trust and this is a kind of trust that you can create for the benefit of a disabled individual so in this in the first trust the special needs trust it's the disabled persons own money that's going into the trust in a supplemental needs trust it's say your money that you're putting into the trust for the benefit of a disabled person such as a special needs child so a typical use of a supplemental needs trust would be if you are doing a state planning for yourself and you have a special needs child rather than leaving money in your will or through your trust directly to your special needs trust to your special needs child which may cause problems for their eligibility for public benefits instead you can leave it into a properly drafted supplemental needs trust for their benefit now another kind of trust is called a pooled disability trust this is a special needs trust that is administered by one of four nonprofit organizations here in massachusetts and again this is a type of trust into which a disabled person can put their own money so that the money is no longer accountable for purposes of any asset limits for public benefits eligibility a pool trust is useful if you don't have a trustworthy family member to serve as a trustee or and if the amount of money that's going into the trust is not sufficient to make it economical to hire a professional trustee to manage the trust so a pool disability trust is is a form of special needs trust that is can be managed by a nonprofit thank you pooled think of a swimming pool pool means that the instead of instead of your instead of the money in the pool trust being in separate little trusts there is one master trust and then there is a pool of money they put all the money together a pool of money that  managed and then each person has a sub account within this pool of money so opening a pool disability trust is a lot like opening a bank account except you don't get the check book the nonprofit serves as the trustee they have the check book so rather than having to pay an attorney such as myself to draw up a special needs trust for for you if you're a disabled person you fill out some enroll forms and you open a pool trust account with one of the non profits in addition to a street is just some government agency the question is if you're a disabled person and you choose to open a pooled disability trust account what does that mean what it means is that your will write a check to the nonprofit who will then establish in the same way that is oh you were opening a bank account the money will go into the pooled into the trust account and then the nonprofit will spend that money for your benefit based on on what it is that you need the nonprofit will charge an annual fee of about three percent for managing the money but to have a private professional trustee usually need to have at least five hundred thousand dollars in a special needs trust and so if you've got say one hundred thousand dollars typically a better choice is to use a pool disability trust if you don't have a trustworthy family member to serve as the trust so let me let me get to the last kind of trust here and if you have specific questions about the different types of trusts i'm happy to speak with you after the presentation so the last two kinds of trusts here the pooled supplemental needs trust again is say you you have a special needs child and you don't have a trustworthy family member to serve as a trustee and you want to create a supplemental needs trust to leave money to for your special needs child when you pass you can create a pool you can open a pooled supplemental needs trust and then have your will point to that so it'll be there when your will is  wives through language and their will can create a form of asset protection trust for the benefit of their surviving spouse and if they leave the property into it through their will if the surviving spouse later needs to apply for public benefits such as mass health the assets in that trust will not be countable so this is sometimes a useful planning technique for planning to protect assets for husbands and wives  o in just a minute i have left the last part of the presentation which not going to have much time to go over but it is a listing of the various types of papers that you might already have and types of information to keep track of that will make it easier for you to stay in charge of your life will allow you to better manage your own affairs while you're alive it will make it easier for other people to assist you if you need help managing your affairs in other words if you've got a this whole collection of paperwork and information already you know carefully organized if someone needs to step in using your power of attorney or your health care proxy etc it will be much easier for them it also makes it easier to apply for certain public benefits such as mass health if you keep track of this information so i'm just in this list of information i'm just going to highlight one issue which is  that if you are making gifts in amounts of one thousand dollars or more to individuals other than a husband or a wife you should keep track of those and the reason i say that is because if you ever need to apply for mass health to pay for your nursing home care one of the questions on the application is have you given away anything of value in the last sixt months and what they mean by anything of value is have you given away anything that was worth a thousand dollars or more so if you're making birthday or holiday gifts and each individual gift is under a thousand dollars normally that won't be a problem i mean if you make one hundred gifts of nine hundred ninety nine dollars all at once i think they'll notice but i mean if you if you're making normal kinds of gifts that are under a thousand dollars  usually not a problem but if you're adding for instance adding a child's name thinking about adding a child's name to the deed of your house that's a gift of more than a thousand dollars and before you do it you'd be smart to consult with an elder law attorney to learn about the ramifications so the question is if you make donations of a thousand dollars or more to two organizations technically they would scrutinize those they might be lenient but here's an  idea if you're going to give two thousand dollars in a given year to your church or to an organization instead of writing one check for two thousand dollars why don't you write a check every three months for five hundred dollars and then those checks those gift bills yes that's treated as a gift and so you may it may come back to to a fact you down the road if you are applying for mass health state benefits to pay for your nursing home care well thank you for being here i know we're out of time again if you if you if you don't know if you need a copy of this feel free to call my office if you're watching on t v or if you have any other questions i'm happy to stick around right now and thank you to the belmont senior center and thank you to the