News & Events

Dinner and Board Meeting
Time: Pre-Dinner Program 5:00 p.m.; Program 6:00 p.m.
Location: Westin Hotel Waltham-Boston, 70 Third Ave. (Exit 27A, Totten Pond Road from I95 [Rte. 128], Waltham, MA
Topic: "Transfer of Assets and Home Equity Under the DRA"
Speakers: Brian Barreira, Esq., CELA, Plymouth and Hingham, MA; Harry S. Margolis, Esq., Boston, MA

Pre-Dinner Program Summary: The pre-dinner program is based on two closely related issues that arose but were not addressed at the Elder Law Institute XII on 3rd party SNTs at Suffolk University this March. First issue: Parents (or grandparents) create an irrevocable trust in order to make gifts to minor, young adult, or disabled children/grandchildren. The trust may or may not have Crummey provisions, and the donors may give only annual exclusion amounts, or may give more. In any case, the intent is that the gifts not be included in the donors' taxable estates.

Question: how much control can the donors retain and still achieve the desired estate tax result? Can the donor be a trustee? What if instead of a trust an UTMA is used? Second issue: UTMAs and 2503(c) minor's trusts raise the issue of "relief of the parent's obligation of support." How much of a problem is this, and what are the tax consequences? Can a parent be subjected to taxes even if the parent had nothing to do with the UTMA or trust at all?

The program will be lead by Mark W. Worthington. The intent for this program is to spend our time at a half-way point between "talking-head" format and "peers sharing with one another" format. Please send your questions and scenarios you would like discussed to MarkW@ma-estateplanning.com with the subject "TAX COWPIE."

Mark W. Worthington, JD, LLM (Tax), CELA, Counsellor at Law, practices Estate Planning & Elder Law in Worcester, MA. Mark is an Adjunct Professor of Law, Western New England College School of Law Graduate Program in Estate Planning & Elder Law; President-Elect, Massachusetts Chapter of the National Academy of Elder Law Attorneys, Inc.; Member, WealthCounsel LLC; and Member, National Academy of Elder Law Attorneys. Mark is ceertified as an Elder Law Attorney by the National Elder Law Association.

Directions to The Westin Hotel Waltham-Boston

From Pike Westbound: Exit 15. Follow signs for Route 128/I95 North. Take Exit 27A, Totten Pond Road and at the end of the ramp take an immediate U-turn onto third Ave. just before the lights. The Hotel is on your left. Follow past the hotel and take a left turn, and then another left into the hotel entrance. Free parking is available in the parking garage on your right.

From Pike Eastbound: Exit 14 to Route 128/I95 North. (Then follow directions above.)

From Route 128/95 North or South: Exit 27A (Then follow directions above.)

Program Summary: TRANSFERS OF ASSETS AND HOME EQUITY UNDER THE DRA
The enactment of the Deficit Reduction Act of 2005 on February 8th of this year acutely impacts our elderly clients. It has also created significant challenges for elder law attorneys trying to assist clients with estate planning.

Harry Margolis and Brian Barreira will examine how transfers of assets both before February 8, 2006 and on or after that date are likely to be treated. They will explore options for individuals faced with planning under the new transfer rules and discuss the likely impact of the classification of "excessive" home equity as a countable asset.

This program will also provide an update on the status of MassHealth regulations implementing the DRA and the Constitutional challenges to the DRA.

Faculty Presenters
BRIAN E. BARREIRA is a Certified Elder Law Attorney via the National Elder Law Foundation and is a member of NAELA's Council of Advanced Practitioners. He specializes in estate planning, probate and elder law, with offices in Plymouth and Hingham, Massachusetts. He attained an LL.M. in Taxation from Boston University School of Law in 1990. During 1990-1995 he served as Chair of two committees of the American Bar Association on elder law. In 1994, Brian was President of the Massachusetts Chapter of NAELA, and in 2000 and 2002 he received its Outstanding Chapter Member Award. He has been widely published on elder law topics.

HARRY S. MARGOLIS founded Margolis & Associates, a four-lawyer Boston law firm, in 1987. He is a graduate of Swarthmore College and New York University School of Law. His practice concentrates on elder law, planning for individuals with disabilities, estate administration and guardianship. Mr. Margolis edits The ElderLaw Report, a monthly newsletter for elder law attorneys published by Aspen Law & Business. He also wrote the ElderLaw Forms Manual and served as founding editor of The ElderLaw Portfolio Series, both also published by Aspen. Mr. Margolis is a Fellow of the National Academy of Elder Law Attorneys and has served on the adjunct faculty of Boston College Law School. He is the founder and President of ElderLawAnswers.

Dinner and Board Meeting
Time: Pre-Dinner Program 5:00 p.m.; Program 6:00 p.m.
Location: Westin Hotel Waltham-Boston, 70 Third Ave. (Exit 27A, Totten Pond Road from I95 [Rte. 128], Waltham, MA
Topic: "Being Disabled in the Community"
Speakers: Mark F. Cavanaugh, J.D., LL.M., Boston, MA; Neal Winston, Esq., Somerville, MA

Pre-Dinner Program Summary: This program will be unstructured and designed to provide an interactive forum for discussion. The pre-dinner program will start at 4:45 p.m. and run for approximately an hour before dinner. Be sure to check the Hotel Directory for room assignment.

The topic for the meeting will be "Institutional Trustees for Trusts Created for the Benefit of Disabled Persons"

Elder Law attorneys frequently are asked to create a trust for a disabled person. Circumstances warranting such trusts include providing for an adult child after parents’ death, sheltering assets when Medicaid eligibility is sought, preserving personal injury settlements. A significant issue arises when there is no suitable family member to act as trustee.

Institutional trustees and pooled trusts may be the solution to resolve this issue. The panel will discuss the options available and highlight the factors to be considered when choosing an institutional trustee or pooled trust.

Others attending the program will be encouraged to share how they have handled the choice of trustee issue and to relate their experiences with the professional trustee’s (bank, attorney, financial advisor) ability to manage special needs trusts.

Facilitating the discussion will be:
David Jones, Esq., Newtonville, MA; Harry S. Margolis, Esq., Boston, MA

Directions to The Westin Hotel Waltham-Boston

From Pike Westbound: Exit 15. Follow signs for Route 128/I95 North. Take Exit 27A, Totten Pond Road and at the end of the ramp take an immediate U-turn onto third Ave. just before the lights. The Hotel is on your left. Follow past the hotel and take a left turn, and then another left into the hotel entrance. Free parking is available in the parking garage on your right.

From Pike Eastbound: Exit 14 to Route 128/I95 North. (Then follow directions above.)

From Route 128/95 North or South: Exit 27A (Then follow directions above.)

Program Summary: BEING DISABLED IN THE COMMUNITY
Whenever a disabled individual calls your office from the community, you realize that issue spotting is crucial to understanding the current situation, and knowing how to obtain the best result. This program covers both public and private sources of income for people who become disabled in the community. With this overview, you’ll learn how these benefits programs work separately, and how they can often overlap with each other.

Social Security Disability and Workers Comp: Neal Winston will compare and contrast eligibility and benefits from Social Security Disability Insurance (not means tested, tied to Medicare) and Supplemental Security Income (means tested, tied to MassHealth). The presentation covers combinations of SSDI, SSI, and Workers Compensation (SSDI and SSI are offset by Workers Comp, and eligibility could be completely lost without proper planning).

Private Disability Claims: Drawing on experiences from both sides of the table, Mark Cavanaugh explains the ins and outs of the private sector disability claim process, and how private disability benefits are often offset by SSDI benefits. His presentation will give you a primer on ERISA and other applicable law, along with how the law is really applied in the claims process including:

• Types of Employer Sponsored Plans
• ERISA Claim Regulations/Exhaustion of Administrative Remedies
• ERISA Fiduciary Rules
• How to select a winning case
• When the facts aren’t favorable, pound on the procedure - War stories and factoids.

ELDER LAW INSTITUTE XII - What Every Estate Planner Must Know About Third Party SNT's

Sponsored with the Massachusetts Chapter of the National Academy of Elder Law Attorneys

Time: 9:00 AM to 5:00 PM

Location: Suffolk University Law School, Boston, MA

Third-party Supplemental Needs Trusts ("SNTs") are an essential part of every elder law and estate planning attorney's toolbox. Unlike self-settled SNTs (such as (d)(4)(A) "payback" trusts), the need for Thirdparty SNTs cuts across all of an estate planner's clientele. All estate planners have clients with disabled children or grandchildren, or elderly parents. Without the knowledge and skills to create Third-party SNTs as part of the estate plan, the attorney cannot properly serve these clients. And what married client would not like to ensure the well-being of his or her surviving spouse? Third-party SNTs present a broad array of challenges. They have many issues in common with self-settled SNTs, borrow many others from both ordinary and sophisticated estate planning and generate quite a few that are completely unique to Third-party SNTs.

This year's Elder Law Institute XII presents a thorough run-down of the issues, how to think about them, strategies, and drafting language. As a bonus, come hear the latest news from Susan Levin on what government agencies, courts, the legislature, and Congress are doing that affects elder law.

For more information

Dinner and Board Meeting - SOLD OUT!
Time: Pre-Dinner Program 5:00 p.m.; Program 6:00 p.m.
Location: Boston Marriott Newton Hotel, 2345 Commonwealth Avenue, Newton, MA
Topic: "The New Medicaid Law!"
Speakers: Susan Levin, Esq., Newton, MA; Deborah Thomson, Esq., Boston, MA; and Carol Cioe Klyman, Esq., Springfield, MA

Pre-Dinner Program Summary: This program will be unstructured and designed to provide an interactive forum for discussion. The pre-dinner program will start at 5:00 p.m. and run for approximately an hour before dinner. Be sure to check the Hotel Directory for room assignment.

The topic for the meeting will be "Use of Testamentary Trusts for Medicaid Planning and Other Purposes"

For the past decade, or more, Elder Law attorneys have used Testamentary Trusts to preserve assets in the event that the Community Spouse predeceases the nursing home spouse. Traditional probate attorneys also use Testamentary Trusts for the protection of minor or disabled children, spendthrifts and beneficiaries whose inheritances could become subject to divorce proceedings. The Testamentary trust is still an effective Medicaid planning tool under the new law.

The pre-dinner program will focus on the practical aspects of getting these trusts up and running and the administrative issues that must be addressed. Since it is likely that there are differences between the Probate Registries’ procedures, please come ready to participate in the discussion and to share your experience.

Facilitating the discussion will be:
Leslie S. Madge, Esquire Past President of the Mass. Chapter and elder law practitioner in Littleton

NOTE: We expect this meeting to be extremely well attended and have reserved a large room. On-time registration is imperative. Although we have tried our best, we may run short of space. Priority is to members first, with the date your registration is received as secondary priority. On-time registration is your best insurance from being locked out of the meeting. Make sure you include your phone, fax, and email with your registration in case you must be notified that the meeting is oversubscribed and that you cannot be accommodated.

For this meeting only, even if you are a member, you must register by mail or fax. You cannot register for this meeting via the web site.

Program Summary: THE NEW MEDICAID LAW!
Enactment of the Deficit Reduction Act of 2005 will have a profound impact on our elderly and disabled clients. The new law impacts transfers, annuities, and even individuals whose only "Medicaid planning" is to have a highly valued home! Every elder law practitioner needs to understand the provisions of this Act and learn how to best advise clients under this new law.

Attorneys Susan Levin, Deb Thomson and Carol Cioe Klyman will provide an overview of the new law and discuss planning opportunities and pitfalls. This Program is a MUST for all elder law practitioners!

Multi-Site Breakfast Meeting
Time: 8:30 - 10:30 a.m.
Location:
Country Club of Halifax, 100 Country Club Dr., Halifax, MA 781-293-9061
Holiday Inn Peabody, 1 Newbury St. (Rte.1 Northbound), Peabody, MA 978-535-4600
Holiday Inn Marlborough, 265 Lakeside Ave., Marlborough, MA 508-481-3000
The Hotel Northampton, 36 King St., Northampton, MA 413-584-3100
Topic: "Representing the Incapacitated Client: Issues and Solutions"
Speakers:
Peabody: Stephen J. Spano, Esq., Saugus, MA (Site Coordinator); Mary McGee, Esq., Lynn, MA; J. Patrick Burk, Esq., Lynn, MA; Emily Barnum, MSW, LICSW, Danvers, MA
Marlborough: Suzanne R. Sayward, Esq., Dedham, MA (Site Coordinator); Timothy R. Loff, Esq., Newton Centre, MA; John G. Dugan, Esq., Medfield, MA; Christine Patterson, LICSW, Tewksbury, MA
Halifax: David J. Correira, Esq., Swansea, MA (Site Coordinator); Kathleen Nealon, Esq., Hopkinton, MA; Joyce Collins, Esq., West Harwich, MA; Claire Sullivan, Geriatric Care Manager
Northampton: John L. Roberts, Esq., Springfield, MA (Site Coordinator); Gary Roy, Esq., Assistant Register, Berkshire County Probate Court, Pittsfield, MA; Hyman Darling, Esq., Springfield, MA; Michael Williamson, Esq., Northampton, MA

Program Summary: As elder law practitioners we are regularly faced with issues which arise when dealing with a client whose mental capacity is questionable, intermittent, or has declined to the point of no return. At times we may stay stuck in the mind set of "avoiding probate" at all costs when in fact the probate court may offer the best solution. The program explores these issues from the office to the Probate Court to the long-term care facility. Our panel of experienced attorneys and an allied professional will share their "tricks of the trade" in navigating these issues.

Social workers face difficult issues with their elderly clients, whether in a community setting or in a long-term care facility. When social workers bump up against the limits of their resources, the social worker may turn to an attorney for answer. The presenters will provide tips and tests for determining an individual's capacity and explore the legal and ethical dilemmas practitioners face in these situations. These will include:

• whether it is appropriate to differentiate between well known, long-term clients versus less well known clients
• ways to respond when a client expresses a wish to make a radical change in his Will or other estate plan documents contrary to his long stated intentions when concern about capacity is an issue
• conflicts between spouses, and other family members
• the use of in terrorem clauses.

Once you conclude that the individual lacks capacity, what are your options if there is no adequate Power of Attorney and Health Care Proxy? The presenters will explain the probate court processes for:

• guardianships (emergency, temporary, and permanent),
• Rogers hearings, court practices on petitions to partition,
• petitions to ratify a doubtful act under a Power of Attorney
• the use of limited guardianships and equitable actions to un-do a conveyance of real estate or a gift and many other not so well known options

Attendees will learn when the appointment of a G.A.L. is mandatory, and under what circumstances it can be beneficial to request such an appointment. In many cases, these Probate procedures must be coordinated with MassHealth Regulations and the latest Medicaid laws. The presenters will address the need to be mindful of the long term care payment rules.

Included in the registration fee for each attendee is a copy of A Handbook for Guardians of Nursing Home Residents in Massachusetts: Demystifying Guardianship and Long-Term Care Medicaid by John J. Ford, Esquire. This 250 page book is a vital resource for anyone serving as a guardian in Massachusetts, and for lawyers who represent guardians.

Attendees will also receive a written summary of the new federal medicaid laws recently enacted.

This program qualifies for 1.5 hours of credit toward the 6 hours required to be eligible to be appointed Guardian Ad Litem during 2006 in Probate Court Categories D & I. The Massachusetts Chapter of the National Academy of Elder Law Attorneys will report an attendee's completion of these credit hours (as well as credit hours for other qualifying programs) directly to the Probate Court in November of 2006, subject to a $150.00 annual processing fee (which will be reduced to $50.00 for 2006 Members and 2006 Educational Subscribers). If you would like the opportunity to have these 1.5 credit hours reported to the Probate Court, please check the appropriate box on the registration form.

Dinner and Board Meeting
Time: Pre-Dinner Program 5:00 - 6:00 p.m.; Program 6:00 p.m.
Location: Boston Marriott Newton Hotel, 2345 Commonwealth Avenue, Newton, MA
Topic: "Federal Medicaid Law Changes"
Speaker: Donna Bashaw, Esq., Laguna Hills, CA

Pre-Dinner Program Summary: The pre-dinner program will be based upon Supplemental Security Income (SSI) and its relation to other social security and Medicaid programs. It will be an interactive forum for discussion based upon your general questions and topics about SSI eligibility issues that you provide. Sending your questions ahead of time will allow us to do any research. A representative from the Boston Regional Social Security Administration office, well versed in SSI, will also be there.

We probably won't have time to solve all of the individual cases, but would welcome rules or policy-based questions that would be of general interest to our group that are the basis of your case. Please send your questions with the subject line "MANAELA SSI QUESTION" to Neal Winston's personal email, naw@moschellawinston.com, and he will save, edit, and publish them on the listserv about a week in advance.

Program Summary:The main topic of the program will be the status of significant federal law changes currently being proposed in Washington, D.C. that affect the elderly. The program will focus heavily on the status of the federal Medicaid law changes and NAELA’s efforts to minimize the impact of those changes on the elderly population.

If time allows, the state-by-state fallout from the Schiavo case will be covered.

Dinner and Board Meeting
Time: Pre-Dinner Program 4:45 p.m.; Program 6:00 p.m.
Location: Boston Marriott Newton Hotel, 2345 Commonwealth Avenue, Newton, MA
Topic: "Medicare: What Every Elder Law Attorney Needs to Know"
Speakers: Diane F. Paulson, Esq., Boston, MA; Marion Aspinwall, Executive Office of Elder Affairs

Pre-Dinner Program Summary: This program will be unstructured and designed to provide an interactive forum for discussion. The pre-dinner program will start at 4:45 p.m. and run for an hour before dinner. The topic for the October 26th meeting will be "Should Irrevocable Trusts Still be Used?".

The discussion will center around whether irrevocable trusts for long-term care planning should still be used. Both the positives and negatives in using such trusts will be explored.

Those expecting to attend should read beforehand the case of Boruch v. Nebraska Dept. of Health and Human Services, 11 Neb. App 713, which can be found on the internet, including the Casemaker feature found on the MBA site. This case involves the use of an irrevocable trust to which the Medicaid applicant’s home had been transferred.

Facilitating the discussion will be:

Robert A. Gorfinkle, Esquire, Past President of the Mass. Chapter and estate planning/elder law practitioner in Braintree.

Program Summary: Elder law attorneys need to be able to give clients some direction on Medicare issues when needed, especially when Medicare Part D is implemented. Notices will soon be sent to current Medicaid recipients that they will lose their prescription drug coverage and will be automatically enrolled in a Medicare Part D plan in the fall of 2005. The implementation of Part D also requires employers and Medigap insurers to send notices regarding the availability of Medicare Part D. Our clients are likely going to be calling us when they receive these letters and we need to know how to counsel them.

Beginning with an overview of the various parts (A, B, C and D) of Medicare as of 2006, this program will cover many important Medicare issues, such as:

• Will Part D eliminate the need for Medigap policies such as Medex?
• Can someone who doesn’t have Medicare Part A get Part D?
• Who can buy the Part D coverage?
• When does someone who becomes eligible for SSDI start receiving Medicare?
• When does Medicare cover long-term care and nursing home care?
• When should Medicare denials issued by a nursing home be appealed?
• Should a Medigap policy be maintained for a person who has been approved for MassHealth Long-Term Care?
• What type of HIPAA waiver will our clients need for someone else to deal directly with Medicare?

Dinner and Board Meeting
Time: Pre-Dinner Program 4:45 p.m.; Program 6:00 p.m.
Location: Boston Marriott Newton Hotel, 2345 Commonwealth Avenue, Newton, MA
Topic: "When Worlds Collide: Elderly Parents Moving in with Children and Vice Versa"
Speakers: Gina M. Barry, Esq., Springfield, MA; Tracey Ingle, Esq., Southborough, MA; Ed Smith, Esq., Amherst, MA

Pre-Dinner Program Summary: This program will be unstructured and designed to provide an interactive forum for discussion. The pre-dinner program will start at 4:45 p.m. and run for an hour before dinner. The topic for the September 13th meeting will be "300% Poverty Level".

The new rules governing the home and community based waiver and the PACE program came out this summer. An understanding of the new rules is important to elder law attorneys who need to advise their clients regarding community based services and care plans designed to keep elders out of nursing homes.

If you have a case history or hypothetical that you believe would be instructive, or if you have specific questions, please forward the same to Emily Starr before September 6.

Facilitating the discussion will be:

Emily S. Starr, Esquire, Past President of the Mass. Chapter and elder law practitioner in Fitchburg and Worcester.

Program Summary: Parents and adult children living together can be an excellent arrangement for both parties. While able, the parents may provide assistance with young grandchildren; as the parents age, the children can provide support and services to the parents. But in order to maximize the likelihood that the arrangement will be successful, there should be a well thought out plan from the beginning.

This program will examine the issues which arise when parents and adult children decide to reside together including, but not limited to, the purchase of a new home, adding an addition or in-law to an existing home, advantages and disadvantages of the various ways to take title to the property, security interests, being "fair" to the other children, life care contracts, and financial issues.

The panelists will also review the implications of various arrangements with respect to MassHealth eligibility and discuss the assortment of tax issues, including gift and estate tax, capital gain, which may arise in these situations and about which you must advise your clients.