For Frank and Mary and all my clients (and for me too: I’m 73), the goal of life increasingly is to get a good night’s sleep. When you get to be 80, that sleep is often interrupted by worries of impending frailty and death. The best cure for that is to resolve to live in the present, and to live every day as if it were your last. That said, here are a few planning tips to help you sleep better:
- Durable power of attorney and healthcare proxy. Maybe at this point, even if you are married, you want to name someone younger (like one of your kids) to handle your financial and other legal affairs (though the durable power of attorney) and to make medical decisions for you (through the healthcare proxy), if you become incapacitated or just need some help managing your bank accounts and other things as you get older.
- Protect your assets. If you are married and one of you needs to qualify for MassHealth, either because you need nursing home care or because you need a lot of care at home, you can qualify for MassHealth by shifting the assets to the healthy spouse. That option ends when your spouse dies, unless those assets were in your spouse’s name at death, and his or her will specifies that the assets that would have gone to you will instead be held in trust for your benefit. If your spouse has already died or you are single and control all the assets yourself, the only way to protect them is to give them away and wait five years for the lookback period to expire.
- Irrevocable trust. If you are single, and have more than one child or other beneficiary to whom you want to give your assets after you die, you may want to consider creating an irrevocable trust to hold a gift of some of your assets before you die. After five years, the assets in the trust are no longer countable for qualification for MassHealth. You may name your most trusted child or other person as trustee, and you may keep the power to appoint a new trustee if you need a replacement. You may also give the trustee the power to distribute assets to the beneficiaries (your descendants, perhaps) who could use the assets for your benefit, or for themselves.
The message here, though, is that when you hit 80, it’s probably time to talk to your lawyer about readjusting your estate plan, if you have not already dealt with these issues. As I always tell my clients, the most valuable thing your lawyer can provide is advice about options you may not have considered. Even if you do not change your estate plan or other documents as a result, just having had the conversation will help you sleep better. If you want to learn more about these issues, you can watch this month’s episode of “Elder Law 101.” You can find it on MVTV (Comcast 13), or visit Frank and Mary’s YouTube channel, youtube.com/elderlawfrankandmary. If you have any questions, please contact me at 508-860-1470, or abergeron@mirickoconnell.com.
Arthur P. Bergeron is an elder law attorney in the trusts and estates group at Mirick O’Connell.
