Mom may not be the only one on the hook for her nursing home bill.

Imagine this scenario:

You’re struggling to pay your mortgage.

You’re trying to help your kids get through college.

And now your mother’s nursing home is suing YOU for payment.

This can’t happen, right? Wrong.

Thirty states, including Massachusetts, have seldom-enforced “filial responsibility” laws, requiring children to pay for the need of their indigent parents. The wonder is that these suits don’t happen more often. It’s a particularly frightening thought that persons in their 60s who are still trying to save for their own retirement needs  while trying to help their underemployed children may be sued to pay for the care of a parent who has outlived her money.

One thing that children can do to both protect themselves and their parents is to get Mom and Dad to sit down with an elder law attorney and carefully review how their assets are set up, and to make a plan for when to apply for Medicaid coverage for the nursing home. If Mom and Dad are still insurable, buying them a long-term care insurance policy may be insurance for your own assets. But it all starts with a frank discussion within the family about how health care will be paid for and who will pay for it.

Social Security Survivor’s Benefits and Kids Conceived After a Parent’s Death

In a unanimous decision today, the Supreme Court made it clear that in deciding whether a child born well after a parent’s death as a result of artificial insemination or surrogacy, the law governing what happens to you assets after you pass away without a will shall determine if the child has the right to receive Social Security Survivor’s Benefits. The Court ordered that if state law explicitly says that the child conceived after a parent’s death does not have a right to inherit, then he is not eligible to receive Social Security Survivor’s Benefits off of the deceased parent’s work record.

Although there are currently over 100 cases of this nature pending before the Social Security Administration, this decision may not be all that helpful, because most states’ intestacy statutes simply don’t address the possibility of conception after death. Mind you, the technique of freezing sperm for future use has been around since the 1960s, but many state legislatures have not caught up to the issue of the rights of inheritance of children conceived in this way after the father’ s death. It’s an interesting issue to watch.

The Rosa Parks Estate Mess — an exercise in needless litigation

When Rosa Parks died in 2005, she left no children, but she did have a will, a revocable trust, and a priceless collection of memorabilia. First, a lawsuit was brought in 2007 challenging the will on the grounds of lack of capacity when Mrs. Parks signed it and her revocable trust in 2000. Now there’s more litigation over the disposition of the collection and the conduct of the trustees who were appointed to take over from the trustees Mrs. Parks had appointed. Depending on which side’s attorneys you believe, there’s either been $595,000 or $150,000 spent on legal fees relating to how to sell off the assets and dispose of the profits — so far.

I have to believe that a lot of this mess would have been avoided with more appropriate estate planning that could have occurred at a younger age. Title to this collection and the intellectual property — her image and words  – could have been transferred at that time to her institute, which is now facing a significant loss of value as a result of the litigation. No one is going to look good coming out of this case.

Happy Mother’s Day!

It’s Mother’s Day – what did you give her? How about peace of mind?

If your mother does not have an estate plan, start talking to her — perhaps in one conversation, perhaps over time — about the peace of mind for both her and you which comes from knowing that her affairs are in order. Ask her about her fears and concerns if she can’t care for herself and see how you can turn the conversation into an opportunity to talk about planning for the future. She needs to hear — gently and diplomatically — how much you would like to help her, but she needs to create the documents which will allow you to do that — not just a Will, but a Durable Power of Attorney, Health Care Proxy, Advance Directive and HIPAA (Medical) Release. Then talk to her about finding the right attorney to help. An experienced elder law attorney can counsel your mother about her options and educate her about how her documents will work. Of course, if your mother is in eastern or central Massachusetts, I’d be pleased to help. Otherwise, you can find an elder law attorney at http://www.naela.org.

Massachusetts regulations on unsafe drivers have been issued.

From the Boston Globe:

State health regulators Wednesday morning unanimously approved rules that define when a person is too cognitively or functionally impaired to drive safely.

 

The state Public Health Council, an appointed panel of physicians, consumer advocates, and professors, adopted the rules after a brief discussion, to give health care providers guidance in evaluating when drivers should be required to give up their car keys.

 

The rules, which are expected to take effect in several weeks, make clear that age and illness are not by themselves factors that would disqualify a person from having a license. Instead, the decision will be based on “observations or evidence of the actual effect” that an impairment may have on a person’s ability to drive safely, according the regulations, which were developed based on public hearings and advice from medical specialists.

 

Cognitive impairment is defined as an impediment that “limits a person’s ability to sustain attention, avoid distraction, understand the immediate driving context, and refrain from impulsive responding.”

 

Some council members said the next step after approving the new rules should be to ensure that the information is widely disseminated to health care providers .

 

John Auerbach, state public health commissioner and chair of the council, said his department will ask the state agency that licenses physicians, the Board of Registration in Medicine, to include the new rules on its website where physicians must renew their licenses.

 

The council acted at the direction of the Legislature, which in 2010 passed a law that encouraged providers and police to report suspected impaired drivers to the Registry of Motor Vehicles, by giving them immunity from lawsuits. The law also prohibits people over 75 from renewing their licenses online; they must visit a registry branch and take a vision test.

 

Age-related safety concerns became a flashpoint in 2010 after a series of car accidents involving older drivers.

The idea that some of my clients are still driving when they lack the insight that they are too physically or mentally impaired is scary. Hopefully physicians will feel empowered by the new regulations to more freely report patients who have no business being behind the wheel.

Are you sure you want to be a fiduciary?

I regularly counsel my clients to be careful about who they name as fiduciaries — personal representatives, trustees, attorneys-in-fact and health care agents. Many reflexively name a spouse. Some of my clients want to name their oldest child, thinking that this is “naturally” the role for that person. Others may want to name their favorite son or daughter.

Naming someone as your fiduciary is not doing them any favors — you are asking a loved one to take on what may be an time-consuming, thankless task — usually for no pay. I always tell my clients to talk to that person long before they ever sign the documents to be sure they are willing to take on the job.

I’ve learned from experience that sometimes does not happen.

Every estate planning and elder law attorney will sooner or later have a case where a named fiduciary elder turns out to be unsuitable for the task or simply did not want the job. That’s one reason why well-drafted estate planning documents name back-up fiduciaries. So what if you’re one of those reluctant or unwilling fiduciaries?

First,do you have difficult feelings about the person naming you? Be honest about this. No matter how well equipped you may be to handle the mechanics of the job, you may not be the right person if you harbor significant anger or resentment. This is particularly an issue where the person is still alive and you will have ongoing contact with him — for example where there is a familial history of alcoholism or emotional abuse by the parent. There is nothing shameful about admitting that you’re just not the right person for the job. Give yourself permission to say “no” if you believe you will not be able to remove your unresolved feelings from the tax at hand.

Second, understand what is being asked of you. Ask to see the document naming you as fiduciary and read it. Can you candidly say that you understand the demands which will be made of you? Do you have a good, unemotional, understanding of your parent’s situation and what the future may hold for her? Do you have the time and energy to do the job properly? If you understand the task and are truly able to do it, are you willing to identify and  delegate tasks to appropriate helpers?  Will you consult paid professionals to provide you with guidance and service as appropriate?

If you learn that a relative is thinking about estate planning, discuss your thoughts with her about who would be an appropriate fiduciary for them. If you don’t think you’re up for the task, say so. If there is no back-up and the relative no longer has capacity to nominate a new fiduciary, you may need to go to court to ask that someone else be named in your place.