• Last Will and Testament
• Massachusetts Health Care Proxy
• Durable Power of Attorney
• Trusts
• Declaration of Homestead
• Life Estate Deed
• Guardianships/Conservatorships

LONG TERM CARE PLANNING / NURSING HOME PLANNING

• Long-Term-Care Planning
• Applying For Medicaid (MassHealth)
• Guardianships/Conservatorships
• Life Estate Deed

PROBATE AND ADMINISTRATION OF ESTATES

• Administration of Estates
• Probate of Wills
• Court Proceedings

AUTOMOBILE ACCIDENT CLAIMS

ESTATE PLANNING - Back To Top

Last Will and Testament - Back To Top

A Last Will and Testament is one of the most important legal documents a person can sign during his or her lifetime. Everyone should have a Will, even if the individual has relatively few assets. A Will does not need to be complicated and it gives you full control over your estate. It addresses issues such as:

• Who will manage your estate upon your death
   
• Who will inherit your assets
   
• Who will inherit assets if your primary beneficiary or beneficiaries die after you sign your Will but before you die
   
• At what age beneficiaries are entitled to assets
   
• Who will your minor children live with
   
• Other issues relating to the management and distribution of your estate.

Without a Will, the laws of your state decide who your beneficiaries are and how and when your assets will be distributed. Without a Will, the laws of your state also decide who is able to serve as the estate representative.


Massachusetts Health Care Proxy - Back To Top

A Health Care Proxy creates a fiduciary relationship between the principal and the agent. The document gives the agent authority to make medical and health care decisions for the principal, but only if the principal is incapacitated. Health Care Proxies may also contain directives regarding the principal’s wishes concerning end-of-life decisions, such as decisions concerning whether or not to continue or even commence life support measures.

• Family Matters. Doctors may look to your family members for input, but if family members are not in agreement, it could lead to conflict and/or result in decisions that you would not have made for yourself. A Health Care Proxy can eliminate those conflicts and difficulties.
   
• Guardianship Avoidance/Privacy. Often a Massachusetts Health Care Proxy avoids the need for a guardianship and reduces or eliminates the delay, expense, and emotional turmoil sometimes associated with guardianships.
   
• Alternate Agents. Only one health care agent can serve at one time, but alternate agents can be named, and are recommended.
   
• Termination. A Health Care Proxy can be revoked in any one of the following ways:
   
  1. Agent’s receipt of notice of revocation;
      
  2. Death of the principal;
      
  3. Divorce or legal separation, if the spouse is the agent; or
      
  4. Principal signs a new Health Care Proxy.

Power Of Attorney - Back To Top

Like a Health Care Proxy, a Power of Attorney creates a fiduciary relationship between the principal and the agent. However, instead of giving the agent the authority to make medical and health care decisions, the Power of Attorney gives the agent the authority to make legal and financial decisions for the principal.

Your spouse suffers a stroke or another medical emergency. You want to access a bank account, a certificate of deposit, or deal with other assets such as an automobile or stock. You may even want to transfer or sell your home. Without a Durable Power of Attorney the courts become involved. The court will have to appoint a guardian for your spouse. By signing a Durable Power of Attorney, the emotional and financial burdens and the oftentimes lengthy court process associated with a guardianship can be eliminated.

• What It Does. A Power of Attorney names an agent who is referred to as your “Attorney-In-Fact.” Although a Power of Attorney authorizes the “Attorney-In-Fact to make legal and financial decisions for the principal, it does not prevent the principal from also participating in his or her legal and financial decisions.
   
• Durable. If the Power of Attorney is “Durable”, it means that the document continues to be valid even if the principal becomes disabled or incapacitated.
   
• Powers. The following is a non-exhaustive list of actions the designated Attorney-In-Fact is authorized to perform: conduct banking transactions; file and receive tax returns; rent, mortgage, or sell real estate; make gifts from your assets; apply for public assistance; and deal with the United States Post Office.
   
• Duration. A Power of Attorney terminates upon the death of the principal, upon the agent’s receipt of a notice of revocation, or when the principal signs a new Power of Attorney.
   
• Privacy. The financial transactions made by an Attorney-In-Fact are not public records. This helps to ensure that the financial transactions will remain private and confidential.
   
• Successor Attorneys-In-Fact. Although a successor Attorney-In-Fact is not required, it is strongly suggested that you choose a successor Attorney-In-Fact to be named in your Power of Attorney. If your primary Attorney-In-Fact cannot serve because they have died, declined to serve, resigned, or become incapacitated, your successor Attorney-In-Fact can serve.
   
• Assurance and Insurance. Obviously, while the law does not require that you have a Durable Power of Attorney, the law also does not require that you have homeowners insurance, but wouldn’t you be thankful that you have that insurance if there was a fire or a burglary? Likewise, you will be fortunate if you or your loved ones never need to use a Power of Attorney, but you will have peace of mind that the document is available in the event of a disability or incapacity.

Trusts - Back To Top

Each person is a legal entity, and so is a trust. Because you and the trust are separate legal entities, anything you transfer from you to the trust becomes an asset of the trust. The trust then holds the assets for your benefit, or for the benefit of those whom you designate.

• Why Have a Trust:
   
  1. To manage assets in order to produce income for a beneficiary, conserve assets, or provide for the growth of the assets;
  2. To reduce or possibly eliminate estate taxes;
  3. To control the use and/or disposition of assets long after you have passed away;
  4. To provide for your spouse and/or your children;
  5. To provide for children during minority or if disabled; and
  6. To protect beneficiaries from claims by creditors.
      
• Components of a Trust:

1. Grantor: Creator of the trust.
2. Beneficiary or Beneficiaries: Individual or individuals who receive the benefits (income and/or principal) of the trust. The grantor can also be a beneficiary.
3. Assets: Items of economic value that are transferred to the trust.
4. Trustee: Individual or entity that manages the trust's assets and distributes the assets according to terms established by the grantor. The grantor can also be the trustee, while the grantor is alive.

Living Trusts (Inter-vivos Trusts): Trusts that are set up and funded (even if nominally funded) during your lifetime.

Testamentary Trusts: Trusts that are incorporated into your Will, and thus court-approved (if necessary) after your death.

Revocable v. Irrevocable Trusts: Revocable trusts can be changed or revoked by the grantor. Irrevocable trusts cannot be changed after they are created.

Life Insurance Trusts: Life Insurance Trusts are used to transfer ownership of life insurance policies out of an individual’s taxable estate. This reduces the value of the estate subject to taxation, and thus, it reduces estate taxes. Life Insurance Trusts must be irrevocable. Therefore, the grantor may not assign the policy, cash in the policy, and/or change the beneficiary.

Special Needs Trusts: The purpose of a Special Needs Trust is to preserve public benefits for the beneficiary. Usually, someone other than the beneficiary funds the trust. These private funds are then used to supplement the beneficiary’s lifestyle, while still enabling the beneficiary to receive governmental assistance. The beneficiary has no right to revoke the trust or compel distributions for support and maintenance.

Life Estate Deeds - Back To Top

A Life Estate Deed is an effective tool that can remove real estate from your Probate estate. Other assets that are in your name individually, such as cars, bank accounts, stock etc. can still be controlled by the terms of your Will.

Basically, a Life Estate Deed can add remaindermen (usually the client’s children) to a deed while creating and reserving a Life Estate, or Life Estates in the property for the current owner or owners. A Life Estate Deed enables people to live in their home for the rest of their life and continue to maintain a legal interest in the home. The Life Tenant(s) are still be responsible for paying real estate taxes, insurance, maintenance, municipal assessments, fees, charges, and expenses relating to the property. A Life Estate Deed also avoids Probate (only with regard to the home). Your Will would control other assets that are in your name individually, and your trust controls the assets that are in the trust.

A Life Estate Deed can also be beneficial in certain circumstances because the remaindermen can get a higher “tax basis” which can reduce or eliminate their capital gains taxes if and when they sell the property.

Caveat: After signing a Life Estate Deed, you do lose some control over the property. For example, if you ever want the property sold, or if you are interested in having it utilized as collateral for a mortgage or home equity loan, you would have to obtain the assent of the remaindermen, and they would have to voluntarily participate in any proposed transaction(s). Also, as in all cases, if a remainderman named in a Life Estate Deed were to file bankruptcy, divorce, or be sued, their interest in the property could be subject to those proceedings. Also, if the remaindermen were to predecease the Life Tenant(s), the Life Estate(s) would still remain in place. The interest of any deceased remaindermen would then pass through his or her Estate.

Declaration of Homestead - Back To Top

Every homeowner should have a Declaration of Homestead. There is no reason not to. This document protects your primary residence from certain creditors so that they cannot force a sale of the home to collect a claim or debt. The level of protection provided under Massachusetts law is currently $500,000.00.

• Qualifications: You must own the home and occupy it as your principal place of residence.
• Coverage: Up to $500,000.00 of equity in your home will be protected from lawsuits, such as claims relating to car accidents. The protection extends to your spouse and dependent children and the benefit continues even after the death of the spouse who signed the Declaration. The protection does not extend to “second homes.”
• Not Covered:

  1. Debts contracted prior to the acquisition of the Declaration of Homestead;

  2. Federal, state, and local taxes, assessments, claims, and liens;

  3. Probate Court execution to enforce a judgment for spousal or child support;

  4. Mortgages and Equity Lines held by financial institutions and others; and

  5. Recovery by MassHealth, and certain other governmental claims.

• Termination: If you ever sell your home the homestead protection ends. You must sign a new Declaration of Homestead when you purchase a new residence.
  
  Caveat: If you refinance or re-mortgage, you may be required to sign a Subordination Agreement or discharge your current Declaration of Homestead. If you discharge your Declaration of Homestead, you should immediately sign and record a new one.

Guardianships and Conservatorships - Back To Top

When a person becomes incapacitated, and has not signed a Power of Attorney and/or a Health Care proxy, it may be necessary to have the Probate Court appoint a Guardian or Conservator to manage the person’s affairs. We offer representation for individuals and families in these situations, but a good adage is “an ounce of prevention is worth a pound of cure.”

Absent an adjudication of incompetency, a person is presumed competent. The person for whom the Petition is brought is referred to as the "ward." A Guardian controls the person and the property of the ward. A Conservator controls only property of ward, not the person.

• Who may petition for Guardianship

A parent
Two or more relatives or friends
The Department of Mental Health

• Grounds for Guardianship

Mental illness
Mental retardation
Inability to make or communicate informed decisions

• General Considerations

Remedial legal procedures can be more time-consuming and more costly then preventative legal procedures. Before the court can appoint a Guardian or a Conservator, the ward must first undergo a medical examination and medical certificate must be filed with the court. Guardians and Conservators are required to file a Bond with the Court. Also, in certain circumstances, the court will require the appointment of an attorney for the ward who cannot be the same attorney who is representing the petitioner. In addition to the guardian, the court may also require the appointment of a Guardian-Ad-Litem (GAL), who double-checks that the action (or proposed action) of the Guardian is appropriate.

Guardians and Conservators are also required to file an Inventory and Annual Accounts. Those documents become "public records" and privacy is lost. As stated previously, if the estate plan includes a Power of Attorney, a Massachusetts Health Care Proxy, and potentially trusts, the client is able to maintain complete privacy by avoiding financial and/or medical documents becoming "public records."
 

PROBATE AND ADMINISTRATION OF ESTATES - Back To Top

When a person dies their estate may be comprised of both non-probate and probate assets.

Administration of Estates - Back To Top

Non-probate assets are those assets that in joint ownership or contractual in nature. Assets that are owned jointly, with rights of survivorship are not subject to probate. The best examples of contractual assets are life insurance policies, retirement benefits, and assets that have been transferred to a trust.


Probate of Wills - Back To Top

Probate assets are those assets that were held in the decedent’s name alone. Those assets are subject to the probate process. Probate is a court process that transfers legal title of assets from the estate of a person who has died to those entitled to the assets. If a person dies without a Will, the process is called Administration and involves the same steps as below, except obviously there is no Will to prove in court and the people entitled to receive the assets are determined by Massachusetts law rather than by the decedent.


Court Proceedings - Back To Top

The basic steps involved in the probate and administration processes are as follows:

• If a Will is involved, proving in court that the deceased person's Will is valid;
• Identifying and inventorying the decedent’s property;
• Determining and notifying heirs;
• Locating missing heirs;
• Appraising property;
• Paying debts, taxes, and the costs of administration/probate;
• Potentially selling real estate (Court approval required if there is no Will authorizing it);
• Filing Estate Tax Returns (if necessary);
• Filing Fiduciary Tax Returns (if necessary);
• Accounting of assets to the court; and
• Distributing the net estate as the Will directs (or as state law mandates if there is no Will).

Our attorneys are experienced in probate and estate administration and can help simplify this complicated process. We can navigate our clients through the probate process and effectively administer the estate because of our understanding of probate and tax laws. We can help ensure that the deceased individual’s intentions are followed.

The Probate Court also determines questions involving property if a Will is contested or unclear. We also offer representation in these situations.

Long-Term-Care Planning/Nursing Home Planning - Back To Top

Long-Term-Care Planning - Back To Top

Many of our maturing clients have spent a lifetime saving and building wealth, with the intent to pass it on to their chosen beneficiary or beneficiaries. Atty. Farrissey, as a Member of the Massachusetts Chapter of the National Association of Elder Law Attorneys (NAELA), and Atty. Grochmal can help to protect those hard-earned assets in the event nursing home care becomes necessary.

If you have purchased long-term-care insurance, that insurance may be able to pay some or all of the nursing home expenses. For those people who have not purchased long-term-care insurance, either you pay for the nursing home care, or the government pays. Medicare may pay if the services are rehabilitative, but the primary program is Medicaid.

In Massachusetts, Medicaid is known as MassHealth. It is the program that deals with the payment to nursing homes for individuals who have exhausted their own resources. Our goal is to preserve the assets, in advance, so they will not be quickly exhausted by nursing home expenses.

If you take the time to plan far enough ahead, Atty. Farrissey and Atty. Grochmal can help protect significant assets from being exhausted on nursing home expenses. We also help to prevent the assets from being exposed recovery if a MassHealth Lien is filed.

Although the changes to the MassHealth laws have made it harder and harder to preserve assets, we encourage you not to delay any longer. Even if you find yourself in a crisis situation (a spouse or loved one needs nursing home care now or in the very near future) we can still provide advice and guidance concerning the protection assets, and we can assist in the MassHealth application process.

Applying For Medicaid (MassHealth) - Back To Top

We prepare MassHealth applications so that you and your family can focus on rehabilitation and health care responsibilities, while we focus on the complexities of MassHealth rules and regulations. If you choose, we will also contact banks, credit unions, stockbrokers, and other financial institutions for the documents and information that MassHealth will require. We can also obtain assessors records, real estate records from the registry of deeds, and contact life insurance companies. If a MassHealth application is denied, we can also appeal that decision, and represent the applicant at a Fair Hearing.

Life Estate Deeds - Back To Top

In addition to avoiding Probate, a Life Estate Deed can be an effective tool that can eliminate future recovery by MassHealth against your home. Basically, the Life Estate Deed can add remaindermen (usually your children) to your deed, while creating and reserving a Life Estate, or Life Estates in the property for the current owner or owners. This procedure enables people to live in their home for the rest of their life and continue to maintain a legal interest in the home. The Life Tenant(s) are still be responsible for paying real estate taxes, insurance, maintenance, municipal assessments, fees, charges, and expenses relating to the property. A Life Estate Deed also avoids Probate (only with regard to the home). Your Will would control other assets that are in your name individually, and your trust controls the assets that are in the trust.

• Caveat: After signing a Life Estate Deed, you do lose some control over the property. For example, if you ever want the property sold, or if you are interested in having it utilized as collateral for a mortgage or home equity loan, you would have to obtain the assent of the remaindermen, and they would have to voluntarily participate in any proposed transaction(s). Also, as in all cases, if a remainderman named in a Life Estate Deed were to file bankruptcy, divorce, or be sued, their interest in the property could be subject to those proceedings. Also, if the remaindermen were to predecease the Life Tenant(s), the Life Estate(s) would still remain in place. The interest of any deceased remaindermen would then pass through his or her Estate.

AUTOMOBILE ACCIDENT CLAIMS - Back To Top

Many automobile accident victims never receive the full amount of damages that they are entitled to. This can occur when the victim does not know the full value of her/his claims and accepts an insufficient offer made by the insurance company.

Our attorneys can identify the full value of your claim and will skillfully negotiate with the insurance company to obtain the maximum compensation to which you are entitled.

Whether you have been injured in an automobile accident as a driver, a passenger, or a pedestrian, due to someone’s negligence, we

Evaluating A Claim:

The two primary factors involved in the insurance carrier’s evaluation of a claim are issues of liability and the calculation of damages.

1. Liability: The insurance carrier will make an assessment as to which individual was negligent or at fault in the accident.

2. Calculation of Damages: Below is a non-exhaustive list of certain circumstances when an individual victim can pursue a claim arising out of the use of an automobile:

• Medical bills totaling $2,000.00 or more; (this threshold amount usually applies to victims sustaining back and/or neck injuries);
• A bone fracture;
• Permanent or serious disfigurement (scarring);
• Loss of body part(s);
• Loss of sight, hearing, smell, taste, or touch;
• Death
• What We Can Do To Help:

We, at the Law Offices of John C. Farrissey & Associates realize that an automobile accident can be emotionally draining, financially stressful and confusing. Let us assist you with all the paperwork and issues that need to be addressed at the outset of your case.

We also know that money can never fully compensate for all of the damages caused by an automobile accident. However, it can provide necessary medical care, rehabilitation and income replacement. In addition, it can provide a measure of justice, particularly in cases of wrongful death.

1. Notification of Representation: We will notify the insurance carriers that we represent you so you will not have to deal with emotionally draining telephone calls from them, thus protecting you from having to give statements that you are not required to give.

2. Personal Injury Protection (PIP Forms) and Reports: We will assist you in completion of all accident forms and reports.

3. Guidance through the process of collecting monetary damages for:

• Pain and Suffering;
• Payment of reasonable medical expenses incurred;
• Future reasonable medical expenses;
• Lost Wages;
• Loss of Consortium (companionship of a family member)