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New Uniform Probate Code Could Cost Your Family
By Michelle Beneski, Esq.
The new uniform probate code could cost your family privacy, dignity and thousands of dollars! Massachusetts has a new Uniform Probate Code that became effective July 1st 2009. What do you as a member of the general public need to know about this new law? The new law provides greater protections for incapacitated persons. The story below will show you the impact this can have on an average family.
Joe and Mary have raised 2 children. They are now retired in their mid 70’s. Joe hasn’t mentioned it to the children but Mary has been a bit forgetful lately. He’s taken over the cooking and some of the cleaning. Joe’s afraid to leave Mary alone so he takes her with him wherever he goes. He wants to take good care of Mary and protect her dignity.
One day, Joe gets in a car accident and is killed. Mary isn’t hurt but gets taken to the hospital as well. Because Mary’s upset, she is more confused than ever. She is admitted to the psychiatric ward. Mary doesn’t have a durable power of attorney or health care proxy.
Sally, Mary’s daughter is contacted. Mary doesn’t recognize Sally and keeps asking about Joe. Clearly, Mary can’t take care of herself. The hospital tells Sally she must get Guardianship of Mary in order to get her released from the hospital. Since Mary can’t live alone she either has to go home with Sally or go to a nursing home. The nursing home is going to cost $9,000 a month. Sally needs to access Mary’s IRA to pay for the funeral and Mary’s care but she isn’t authorized. The Bank tells Sally that she needs to be appointed conservator of Mary’s estate in order to oversee Mary’s finances and get access to Mary’s money.
All Sally wants to do is grieve for her father and take care of her mother but somehow she has to also deal with all these legal issues. Why? Because Joe and Mary never took the time (perhaps they didn’t even know they needed to) to decide who would make legal, financial and health decisions for them if they were alive but couldn’t make them for themselves. Signing a Massachusetts Health Care Proxy and a Durable Power of Attorney would have avoided the need for a guardianship and conservatorship. It would have saved thousands of dollars in legal fees. It also would have allowed Sally to focus on taking care of Mary and protecting Mary’s dignity and privacy. Why? As health care agent and agent under a DPOA, Sally could have brought Mary home, gotten access to Mary’s IRA to pay for home care without any court involvement, quickly and privately.
If you don’t think this could happen to you, your parents or your spouse, you’re wrong. It happens almost every day in Massachusetts. There is a sixty percent chance than an adult over 18 will become incapacitated at some point in her life. Everyone over 18 should have a Durable Power of Attorney which allows another person to make legal and financial decisions and a Health Care Proxy that allows another person to make medical decisions for him if the person cannot make decisions for himself. These two documents properly drafted and executed will avoid the need for a guardianship or conservatorship in most situations.
This was true even before the new law came into effect. But the new law provides more protections for incapacitated persons. It requires much more stringent reporting requirements of the guardian and/or conservator. It means Sally will have to file a detailed report of Mary’s health, living situation and finances with the court within 60 days of being appointed. Sally will also need a bond that will cost several thousand dollars to manage Mary’s finances.
Sally knows this is exactly what Joe and Mary would have wanted to avoid. They were private people who were very careful with their money. Court intervention and costs could have easily been avoided. Mary and Joe only needed to execute a few basic estate planning documents. The cost in comparison to the costs of a guardianship and conservatorship are minimal. Why didn’t Mary and Joe take care of this? It was something they were going to get to “someday”. Or perhaps they thought they didn’t need it because they were married. We’ll never know. What I can tell you is some variation of Joe and Mary’s story happens everyday in Massachusetts.
If you do not have these documents call an estate planning attorney today and make an appointment to get them drafted. If you do have documents make sure your documents are current and meet the requirements of current law.
Michelle Beneski, Esq.
Michelle D. Beneski, Esq. is a partner in the Surprenant & Beneski, P.C. located in New Bedford, Massachusetts. The firm concentrates on Elder Law and Estate Planning Issues.
She is a frequent speaker and author on estate planning topics.
Michelle is a graduate of Pepperdine University School of Law, Cum Laude and holds L.L.M. in Taxation from the University of Florida, College of Law. She is a member of the National Academy of Elder Law Attorneys, Wealth Counsel and the Bristol County Estate Planning Council.
We meet with our clients for Free every three years to ensure the documents still work for them. Surprenant & Beneski, P.C. charges $500 for an initial estate planning consultation. However, this consultation fee will be waived if you reference this article.
If you would like more information on Medicaid planning, call for our Free Consumers Guide to Medicaid Planning or our free report 25 Ways You Can Mess Up Your Estate Plan or to make an appointment for a consultation, call our toll free number (800)929-0491 for a recorded message or call our office at 508-994-5200.
Feel free to contact Michelle at 508-994-5200 or visit www.myfamilyestateplanning.com
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