Moschella & Winston, LLP Your Legal Advisor for Life

A family from a community on Boston’s North Shore, represented by Massachusetts Disability Attorney Michael Couture of law firm Moschella & Winston, recently prevailed in reversing a Massachusetts Department of Developmental Services (DDS) policy denying critical support services for their autistic son.

The purpose of the DDS Program is to prevent disabled children from living in a state-operated facility. DDS offers funding that allows the child to remain at home and be educated within the community. The program provides an array of services and supports that supplement other services that the child may be receiving, such as private health insurance or Medicaid.

The family’s oldest autistic child became eligible for Medicaid’s Adult Foster Care program (AFC) when he reached the age of 18. AFC is a Medicaid-funded program that provides care-giving services to disabled individuals in a private residence. The primary goal of this program is also to keep the disabled individual in the community and out of a publicly funded facility. Medicaid pays the caregiver a regular stipend for providing 24 hour care in a safe environment. The AFC provider in this case was the mother, which is allowable within the Medicaid regulations.

DDS terminated the autistic child’s eligibility from its program because of his participation with AFC. DDS reasoned that if paid under the AFC program, then the family would be paid for services for the child that overlapped somewhat from two support programs, and therefore the child was not eligible to participate at all in the DDS program.

Attorney Couture successfully advocated at a hearing before a DDS officer that the DDS and AFC support programs provide completely separate services to the autistic child and therefore the DDS argument was without merit. The most important factor in this case, however, was that the DDS did not follow its own contract with the family, which detailed when and why a disabled child would lose funding. Despite the agency attorney’s firm opposition, the Assistant Commissioner of the Department of Developmental Disabilities reversed the agency’s previous decision and allowed the child to remain in the program indefinitely. It is not known if this decision will be implemented by the DDS in all similar cases, or just applies to this child and his family.

Michael R. Couture is an associate at the law firm of Moschella & Winston, LLP, where he specializes in Veterans’ benefits, Veterans’ healthcare, Medicaid, Social Security, special needs law, and estate planning. He is an accredited attorney with the Department of Veterans Affairs, as well as a member of the National Academy of Elder Law Attorneys and the Massachusetts Bar Association.

Moschella & Winston, LLP will be a participant in the 10th Annual Safety & Wellness Fair for Burlington seniors being held at the Burlington Council on Aging on Tuesday. October 25, 2011 from 10 am – 1 pm.  

The goal of the fair is to provide information that will educate seniors about staying safe and healthy and residing in their homes for as long as possible, but realizing that it is not always realistic to do so, and to provide information on viable options once living safely at home is no longer feasible.

Burlington Council on Aging
61 Center Street
Burlington, Mass

A Massachusetts probate attorney answers common legal questions about how to handle the estate of a family member or other loved one who has died

By Michelle Mulvena

The death of a loved one is often a very emotional and confusing time for the family. Most of the time the family does not know where to begin when a father, mother, husband or other family member passes away. The loved one’s assets need to be located, bills need to be paid, homes need to be taken care of, and Social Security and other government agencies may need to be notified. In many instances, this can become a complicated and overwhelming process. In the immediate aftermath of the death of a family members, there are many things to consider. Here are a few critical questions to get started:

• Did your loved one leave a will? Check such places as the safe, strong box, bank deposit box, or contact your loved one’s attorney to see if they have the will.
• Did you notify Social Security Administration? If your loved one was receiving Social Security benefits, the Social Security Administration will need to be notified to stop benefits immediately. Sometimes the funeral home or the bank, if they have notice of the death, will notify Social Security for you.
• Are there bills that need to be paid immediately? Unless your loved one had a joint bank account, funds may not be accessible to pay bills until an “executor” or “administrator” is appointed by the Probate Court.
• Does the deceased own real estate? There are many expenses associated with real estate that may need to be paid and rents may need to be collected.

It is always best to consult with an attorney who is experienced with probate administration to help you answer these questions and guide you through the probate process. The attorneys at Moschella & Winston are dedicated to estate planning and administration services for families and individuals. Located in Somerville, MA, we serve families throughout the Boston metro area and across Massachusetts. If you would like to discuss the steps involved and learn more about handling estate settlement issues due to the death of a loved one, please call us at 617-776-3300. We have helped many, many people deal with these sometimes complicated issues that require proper attention during a difficult, emotional time.

• Learn more about our Probate Administration services.
• Read our Probate Adminstration FAQ.

Michelle Mulvena is a trust and estate attorney at Moschella & Winston, LLP, a Boston-area law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.”  Please contact her at mm@moschellawinston.com or (617) 776-3300.

New Massachusetts law allows establishing a trust for the care of one or more animals

It is a proven fact that pet owners live longer, happier lives.  After all, there is nothing better than coming home after a hard day to wagging tails and happy meows. In most homes, pets are considered members of the family. So shouldn’t we do everything we can to protect them? Although many individuals set up an estate plan to protect their families and loved ones upon their death, until recently, no such security was available for our pets and animals. However, new legislation now provides Massachusetts pet owners with a legally enforceable method to protect the future wellbeing of their furry family members.

What is a pet trust?

In the past, pet owners had little say over how their animals were to be cared for upon their death. Many had chosen to designate money and appoint an individual in their wills for pet care, but there was no real legal obligation to carry out their wishes – until now. The Massachusetts Pet Trust Bill recently signed by Governor Deval Patrick allows pet owners to establish a pet trust and set aside funds for their animals, along with specific instructions for care, exercise and diet. Additionally, pet owners can designate a caregiver as well as appoint a Trustee, who will ensure that all directions are carried out accordingly.  If the terms of the trust are not met the Trustee will be held accountable, possibly even removed and replaced.

Not only will a pet trust give you peace of mind and ensure that your pet’s daily routine and lifestyle will not be disrupted, but it will drastically reduce the number of animals forced to enter shelters and rescues because their owners have passed away.  For all the love and joy our pets bring to us we can now make sure their future needs are protected.

Learn more about estate planning for pets

Have you considered what is to happen to your animal family members upon your death? If you would like to discuss the concept of estate planning for your pets, please call Michelle Mulvena at 617-766-3300.

Michelle Mulvena is a trust and estate attorney at Moschella & Winston, LLP, a Boston-area law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.”  Please contact her at mm@moschellawinston.com or (617) 776-3300.

Attorney Michael Couture will be participating in the Arlington Council on Aging (COA) “Families Caring for Mom and Dad” Health Care Fair. The Health Care Fair will be held on Saturday, June 18th, at the Arlington Town Hall, located at 730 Massachusetts Avenue, from 12:30 pm to 4:30 pm.

The goal of the Health Care Fair is to educate seniors and their families on the many resources available to seniors. Experienced professionals will be at the Health Care Fair to answers questions such as:

• “Something seems wrong with Mom, but we don’t know what it is?”
• “How do we tell Dad we think he should stop driving?”
• “How will Mom and Dad get to the doctor’s appointment if they can’t drive?”
• “How do we know this home care service is reputable?” “Is this service covered by health insurance?”
• “How should I make a financial plan?”
• “Are there alternatives to taking all these expensive drugs?”
• “Do I need a will?”
• “How do I apply for Veterans’ Benefits?”

More than 30 exhibitors will provide information and answer questions about senior programs and services, including diabetes counseling, healthy eating advice, home health and rehabilitation programs, and physical therapy services. Additionally, there will be blood pressure and vision screenings, an exercise demonstration (participants can join in), discussions on Memory Loss and Alzheimer’s Disease as well as Round Table Discussions.

Come join us and take a few moments to speak with Attorney Couture.

Michael R. Couture is an associate at the law firm of Moschella & Winston, LLP, where he specializes in Veterans’ benefits, Veterans’ healthcare, Medicaid, Social Security, special needs law, and estate planning. He is an accredited attorney with the Department of Veterans Affairs, as well as a member of the National Academy of Elder Law Attorneys and the Massachusetts Bar Association.

Spring has sprung!  Time to dust off the cobwebs of winter and let the light shine in.  Spring is a good time to dust off the cobwebs of those old estate plans you did five or ten plus years ago when the kids were babies.  Well the kids are all grown up with babies of their own now.  Your life circumstances and assets have probably changed considerably too.  Not to mention the laws have changed as well and may impact your estate plan, particularly the Medicaid and estate tax laws.

Is Your Will Up to Date?

Reach deep into the back of your closet and pull those Wills out of mothballs and ask yourself some questions:

• Does the Will still reflect my wishes?
• Is the Will enough?  Should I consider a trust?
• Have my family circumstances changed?
• Have my assets changed?
• Is it time to consider protecting my assets in case I need a nursing home later?
• Do I need to be concerned about estate taxes?

What’s in an Estate Plan?

Estate plans should really be reviewed every three years.  The foundation of any estate plan must include a:

• Will
• Health Care Proxy
• Durable Power of Attorney.

Trusts are important as well, but whether you need one, or need to revise your current trust, will depend on your individual circumstances.

So include your estate plan as part of your spring cleaning this year and stay ahead of the curve.  Proactive planning is the best plan there is. To learn more about our estate planning services, please visit our Estate Planning FAQ on our website.

Michelle Mulvena is an attorney at Moschella & Winston, LLP, a law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.”  Please contact her at mm@moschellawinston.com or (617) 776-3300.

The May/June episode of Legally Speaking with Michelle Mulvena. This episode discusses news affecting seniors with Ward 3 Alderman/Vice President of the Board of Alderman Tom Taylor, and Aldermnan-At-Large William White.

By Michelle Mulvena

Your home is your biggest asset, but is it protected from creditors? Given the current economic climate, more and more homeowners find themselves at risk of losing their homes to satisfy such outstanding debts as credit cards and car loans.  What many people do not know however, is that by recording a proper Declaration of Homestead, the risk can be avoided.

What is a homestead?

This is a document filed at your local registry of deeds.  It protects up to $500,000.00 of equity in your home from creditors by preventing them from attaching a lien against your property or forcing a sale to cover outstanding debts.

Do you qualify?

As of March 16, 2011 the new Massachusetts Homestead Actprovides all Massachusetts homeowners with automatic protection up to $125,000.00 without even filing a Declaration of Homestead, so long as they occupy the property as their primary residence.  However, that is often not enough.  To qualify for the maximum protection of $500,000.00, homeowners must record the Declaration of Homestead with their local registry of deeds. If your home is held in trust, or you reside in a mobile home, you should consider filing a Declaration of Homestead, as they too are now eligible for the maximum protection.

What if your home is jointly owned?

Previously, only one homeowner was allowed to file for homestead protection.  Recent changes however now allow for all owners to benefit, so long as the proper declaration is filed.  Additionally, proper filing will protect spouses and minor children in the event the homestead holder dies.  If you intend to sell your home somewhere down the line, filing a homestead is critical.  It will shelter up to $500,000.00 of the proceeds from the sale for up to one year or until you purchase another primary residence, whichever is sooner.

Massachusetts Homestead Law Tips

A few important things to note:

• The homestead protection does not apply to certain types of creditors such as:
• Your mortgage company
• Liens recorded prior to the homestead
• Child or spousal support
• Federal, state or local liens, including Medicaid liens
• If you have refinanced in the past several years, you should consider filing a new homestead declaration.  Many refinancing mortgage agreements contain a waiver of homestead rights, so you want to ensure that you take advantage of the full protection.
• All existing homesteads recorded prior to March 16, 2011 will remain valid.  However, it is important to review the documents in light of these recent changes to ensure that your property is properly and fully protected.

Michelle Mulvena is an attorney at Moschella & Winston, LLP, a law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.” Please contact her at mm@moschellawinston.com or (617) 776-3300.

The March/April episode of Legally Speaking with Michelle Mulvena. This episode discusses the new Massachusetts homestead protection law, and the current housing market climate and the impact on estate planning.

See this related article by Michelle: Protect Your Home with a Homestead Declaration.

By Michelle Mulvena, Esq.

A life estate is a type of ownership interest in real estate.  Most commonly the life estate is conferred by deed but may also be conferred in a will or trust.  The typical scenario pertains to a parent who wants to “give the house to the kids” but retain control over the property. The parent transfers the real estate by deed to the children reserving a life estate for him or herself. The parent is known as the “life tenant,” and the children have what is known as a “remainder interest.”

The life estate avoids probate because the real estate goes directly to the children upon the death of the life tenant.  The life estate can also protect the home from Medicaid after the five year look back period imposed by Medicaid.  The life tenant is entitled to any rental income, continues to pay all expenses of the real estate including real estate taxes, homeowners insurance, repairs and the capital gains tax exclusion.  The life estate will qualify for a step up in basis upon the death of the life tenant.

There are some pitfalls.  A life estate is a transfer of the remainder interest to the children.  Thus according to Uncle Sam, it is a gift.  You will need to file a gift tax return for the value of the remainder interest.  Also, if the home is sold during the life of the life tenant, then the children may have to pay capital gains tax.

While the life estate is a simple and often used planning tool, as always, it is best to consult with an estate planning lawyer to ensure that the life estate is right for you.

Michelle Mulvena is an attorney at Moschella & Winston, LLP, a law firm specializing in legal planning and protection for individuals and families for over 30 years. She is also host of the Somerville Cable TV show, “Legally Speaking with Michelle Mulvena.” Please contact her at mm@moschellawinston.com or (617) 776-3300.