Sikes and Edwards, P.C.

07/26/2021

MGA and SLL ANNUAL GUARDIANSHIP CONFERENCE WEBINAR
GUARDIANSHIPS, CONSERVATORSHIPS AND ALTERNATIVES THERETO

DATES & TIMES: September 23 & September 30, 2021 from 9:00 a.m. – 12:00 p.m.
PROGRAM FEE: $125 to attend both sessions. $75 to attend one day.

Online registration is encouraged. For assistance, questions on group discounts, accommodations requests, special billing, program content, out-of-state CLE credits, and general CLE information contact Michael Saporito by email at [email protected]. Registrations accepted in order of receipt. R...

05/10/2021

Massachusetts Guardianship Association Virtual Event
"Support and Protection for Those Who Need it Most"
Thursday, May 13th | 8:30am – 10:30am
Please join us on May 13 for an informative session on the role of adult protective services as well as community based supports that may be available to elders living at home.

To register to attend, please email [email protected]

Speakers
Jennefer Raymond
Outreach and Training Specialist
Commonwealth of Massachusetts
Disabled Persons Protection Commission (DPPC)
Website: www.mass.gov/dppc


Abuse Reporting Hotline (800) 426-9009
Jennefer serves as the Outreach and Training Specialist at the Disabled Persons Protection Commission(DPPC). DPPC is the independent state agency in Massachusetts responsible for the investigation and remediation of instances of abuse against persons with disabilities. Jennefer provides trainings to agencies, providers, professionals and community stakeholders on recognizing indicators of abuse and neglect, reporting responsibilities of Mandated Reporters and responding to persons with disabilities.

Dean Lagrotteria
Protective Service Regional Program Director
LifePath, Inc.

Dean has worked professionally with the older adult population for over 12 years with 10 of those years in Elder Protective Services. Beginning as a Protective Services Investigator he became intimately involved in the Guardianship process and also in seeking less restrictive alternatives. Later as a supervisor and program director for Protective Services he was responsible in making the decision to seek a Guardian and/or conservator Dean is currently the Program Director for Elder Protective Services at Life Path which services Franklin and Berkshire Counties and the North Quabbin area. Dean currently lives in the Berkshires after having lived for many years in Hampshire and Franklin Counties.

Berkshire Office
75 South Church St.
Suite 401
Pittsfield, MA
413-773-5555

Greenfield Office
101 Munson St
Suite 201
Greenfield, MA 01301
413-773-5555

Taryn Lee-Turgeon
Assistant Director of Protective Services
Executive Office of Elder Affairs. [email protected]

Taryn Lee-Turgeon holds a Bachelor’s Degree in Sociology from the University of Massachusetts Amherst and her Juris Doctorate from the Massachusetts School of Law Andover. She has worked in Elder Protective Services since 2005 as a Protective services worker in the field for almost 10 years, also as a Protective Services Supervisor and Program Director at 2 different local agencies. She started her position as the Assistant Director of Protective Services at the Executive Office of Elder Affairs (EOEA) in October of 2020. While working in Protective Services Taryn was a Master Trainer for the Protective Network in Basic Training in Protective Services as well as Interviewing for Decisional Abilities. She has also had the opportunity to provide community training to Councils on Aging, Senior Centers, Housing Authorities, medical professionals, first responders as well as many other community based programs.

Lisa Kapacziewski LSW
Crisis Worker/Protective Services
Elder Services of Worcester Area, Inc.
508-852-3205
Lisa Kapacziewski is the Crisis Worker in the Protective Services Department of Elder Services of Worcester Area, Inc. She has held this position since 2003.
Lisa holds a Bachelor's Degree in Criminal Justice from American International College and is a Licensed Social Worker. Lisa grew up in Worcester, attended Worcester Public Schools and has stayed in Worcester to live and raise her family. Lisa has experience working in residential settings having worked for the Seven Hills Foundation as well as the Key Program. She began her career at Elder Services in 1996 when she was hired as a Home Care Case Manager, later working as an Information & Referral Specialist, Protective Services Worker, and in 2004 she was hired as the Crisis Worker. As the Crisis Worker, Lisa specializes in identifying self-neglect in those 60 years old and older by working with the elder and any family or informal supports that can be identified, to establish a safety plan to alleviate the identified risks and ensure the elders safety.

DPPC protects adults with disabilities from the abusive acts or omissions of their caregivers through investigation oversight, public awareness, and prevention.

04/23/2021

HOW AND WHY TO SERVE AS GUARDIAN OF YOUR LOVED ONE

If your friend or loved one is incapacitated to such an extent that she/he cannot make rational decisions about medical treatment, residence, or supportive services, you might be asked to serve as his/her court-appointed guardian. A guardian is basically a surrogate decision-maker about matters of the person of someone who is incapacitated (hereinafter, “the Respondent”); it is not a substitute decision-maker about the Respondent’s finances.
A guardian does not assume financial responsibility for the Respondent. Any expenses related to the guardianship proceeding in court, or related to the ongoing life style of the Respondent, should be paid out of the Respondent’s resources, whether by Respondent or his/her duly authorized surrogate. This might be a court-appointed conservator, social security administration-appointed “representative payee,” or an attorney-in-fact nominated in a durable power of attorney document that the Respondent signed at an earlier date.
The guardian’s duty is to make decisions that are in the best interest of the Respondent. To the extent possible, the Respondent should be given input; but his/her preference is only one factor for the guardian to consider when making a decision.
In order to be appointed as guardian, four things may be required of you:
1. Bond - You need to sign a “bond” form that essentially confirms your willingness to accept the job. There is one bond for a temporary guardian who is being appointed to handle an immediate need of the Respondent that cannot wait until the end of the legal process. There is another bond for the permanent guardian who is being appointed to handle things on a long-term basis.

2. CORI - You also need to provide the court’s probation office with a CORI (Criminal Record Information) form. This forms contains your name, your address, your date of birth, your social security number and the names of your parents. It enables the probation officer to look at any criminal record that you may have. If you happen to have a criminal record, then the Judge will have to consider whether or not that record renders you unsuitable to serve as guardian.

3. Court - Judges will want to meet you to determine your suitability to serve as the guardian for the Respondent. Typical questions are “Whats is your relationship to X?” and “Why are you the right person to be X’s guardian?”

4. Guardian’s Plan/Report - The guardian is required to file an annual document with the Court. It is a simple three page form that needs to be completed, signed, filed with the court, and given to the Respondent. It keeps the Court informed about how the Respondent is doing, whether or not guardianship is still appropriate, etc. If the Judge has any questions, she/he may schedule a time for you to come to court and answer those questions, but this is a rare occurrence. If you do not file this report, you can be removed as guardian.

Be aware that there a few things that a guardian cannot do for the Respondent.
1. You cannot consent to long-term admission to a skilled nursing facility unless the court has specifically authorized that in the Decree of Guardianship. However, you can consent to an admission for less than 60 days, for the purposes of rehabilitation, if you and the physician sign and file with the court a form entitled “Notice of Intent to Admit.” If the Respondent has counsel, you need to give them a copy; if the Respondent doesn’t have counsel, the court will appoint one. This is a pretty straightforward procedure for the court to make sure that the guardian is not unnecessarily institutionalizing the Respondent.
2. You cannot consent to treatment with anti-psychotic medication unless the court has specifically authorized a treatment plan for it. Such orders are good for one year, get monitored by a court-appointed professional, and are renewed annually.
Generally, serving as guardian for a family member or a friend is not a difficult or complicated task. Most importantly, you will be ensuring their basic safety and health by consenting to adequate care, treatment and supervision at a time in their lives when they are no longer able to do that themselves.

04/12/2021

SAVE THE DATE!

Massachusetts Guardianship Association Virtual Event
"Support and Protection for Those Who Need it Most"

Thursday, May 13th | 8:30am – 10:30am



Please join us on May 13 for an informative session on the role of adult protective services as well as community based supports that may be available to elders living at home.



Moderators:

• Michelle Sikes, Esq.

• Lisa Judkins, NCG
Who should attend?

Guardians, Lawyers, Case Managers, Social Workers, Clinicians, Geriatric Care Managers, Trustees, Nursing Home Administrators, Senior Center Directors, Senior Housing Directors, Financial Planners, Family Members

To register to attend, please email [email protected]

07/24/2020

Guardianship and Conservatorships

PARENS PATRIAE POWERS

In a guardianship or a conservatorship proceeding, the state, through the court system, exercises powers known as parens patria, literally “country as father.” Traditionally when someone with an estate was a chronological adult, but lacked the maturity to manage his/her own affairs, the courts could be asked to intervene and appoint an adult to continue to function as the parent and manage the estate on his/her behalf. The Court appointee was the “guardian” or the “conservator,” and the person whose estate was under such management was the “ward (now referred to an incapacitated person).”

The current statute in Massachusetts provides for guardianship/conservatorship when the incapacitated person’s ability to manage his/her personal and financial affairs is substantially compromised by mental illness, by developmental disabilities, or by physical incapacity. Physical incapacity may include conditions ranging from coma to the after-effects of a stroke. When the incapacitated person’s incapacity only involves his/her ability to manage their financial affairs, a conservator is appointed to manage the estate. The estate includes income, assets, and debts. When the incapacitated person’s incapacity involves the ability to manage his/her personal affairs, such as medical treatment, then a guardian is appointed to make those decisions. There is also a procedure that can be used when the parent(s) or a child under the age of eighteen (18) are unfit to care for the child, so that the court can appoint a suitable adult as the guardian.

The court-appointed guardian or conservator is charged with managing the incapacitated person’s personal and/or financial affairs on behalf of the incapacitated person, and making decisions that are in the his/her best interest. They are accountable to the court for the discharge of their duties.

The Court utilizes several different mechanisms to ensure that the guardian or conservator is fulfilling his/her obligations faithfully. Those mechanisms include bonds, guardianship plans, and accounts. In addition, mechanisms exist to discharge a guardian when one is no longer needed, or to remove a guardian for neglect or abuse of his/her duties. Finally, there are inherent limitations on the powers of the guardian or conservator.

MODERN LIMITATIONS TO GUARDIANSHIP

Parents are often required to make decisions that their children do not like, such as getting a vaccination from the pediatrician. Similarly, guardians and conservators often have to make decisions that their incapacitated person’s dislike, such as limiting their spending money or applying to a state agency for specialized services. While the incapacitated person expressed preference should be taken into consideration when the guardian or conservator is making a decision, that preference is not determinative of what is in the incapacitated person’s best interest. Indeed, it is the incapacitated person’s very inability to determine his or her own best interest that prompts the Court to appoint a guardian or conservator in the first place.



Extraordinary Medical Treatment

A guardian does not have the right to make decisions about what the courts consider to be “extraordinary medical treatment.” The courts have delineated a few areas that qualify as extraordinary medical treatment:

Life prolonging treatment: Guardians have the authority, even the obligation, to consent to life-saving treatment. They lack the authority to consent to (or to decline) life-prolonging treatment, such as keeping a patient on a respirator. Of course, many times there is no decision to be made, because there is a unanimous medical consensus about the utility or the futility of such treatment. However, when there is no medical consensus, when the incapacitated person is able to express an opinion that is contrary to that consensus, or when involved family members are not in agreement with that consensus, the Court needs to be asked to make the decision. An emergency petition can be filed in the Probate and Family Court seeking a determination of the incapacitated person “substituted judgment.”

Sterilization or abortion: Because these decisions have irreversible consequences bearing on the incapacitated person’s right to procreate, a guardian cannot consent to either abortion or to sterilization. Instead, a petition must be brought seeking a determination of the incapacitated person’s “substituted judgment.”
Anti-psychotic medication: In a physical emergency, doctors at a hospital have the authority to involuntarily administer anti-psychotic medication to prevent harm. In a psychiatric emergency, doctors at a hospital have the authority to initiate ongoing treatment with anti-psychotic medication on an involuntary basis “on the way to court.” Any ongoing involuntary treatment with anti-psychotic medication can only be done with court approval. Psychiatric facilities may procure such authorization for the length of an involuntary commitment as part of the civil commitment process in District Court. Otherwise, that authority can only be granted by the Probate and Family Court with the adjudication of a “Rogers” petition.
Case law and certain regulations require that the treating physician have voluntary, informed consent for medical treatment. Where the patient has a court-appointed guardian, it is unlikely that the incapacitated person’s consent to treatment with anti-psychotic medication is truly voluntary and informed. As a practical matter, most physicians and facilities do not worry about informed consent for short-term treatment, such as a brief psychiatric hospitalization. But any long-term treatment with anti-psychotic medication should lead to a Rogers petition.

Procedures: The procedures for securing court authority for extraordinary treatment include the appointment of an attorney to represent the incapacitated person and the requirement of an evidentiary hearing in any case where the attorney does not agree that it is the substituted judgment of the ward to accept the proposed treatment. Hence, it is crucial for the guardian to be represented by a lawyer in any such proceeding in order to ensure that the judge hears both sides of the evidence and makes a decision that is in the best interest of the incapacitated person.

Other Civil Liberties Issues

A guardian cannot consent to voluntary or involuntary psychiatric hospitalization of his/her incapacitated person. The incapacitated person may be involuntarily hospitalized under the same procedures applicable to any other adult: pursuant to a “pink paper,” signed by a designated physician, for an initial three-day period, or by order of the District Court for a similar period. Alternatively, the guardian can seek specific permission from the Probate and Family Court for a particular involuntary psychiatric hospitalization. In any event, the standard is the same: whether failure to hospitalize the ward would likely result in physical harm, to the ward or to others, because of mental illness. The Probate and Family Court procedure is similar to that of the civil commitment statute. A court-appointed attorney will represent the ward at an evidentiary hearing.

Occasionally, a guardianship is limited by the Court in order to permit the ward to exercise civil rights that she/he would otherwise be denied. This should be standard procedure, as long as the ward has the capacity to make those decisions. Indeed, unless a guardianship is limited, the ward lacks the ability to enter into marriage or to vote in an election.

TYPES OF GUARDIANSHIP

PERMANENT GUARDIANSHIP/CONSERVATORSHIP

The permanent guardian/conservator of a incapacitated person is charged with managing the personal and financial affairs of the incapacitated person, subject to any limitations imposed by the Court. For a discussion of limitations, see below. Personal affairs include the choice of the residence and consent to medical treatment or social services. Financial affairs include the incapacitated persons assets, debts, income and expenditures.


The permanent guardian is charged with managing only the personal, non-financial, affairs of the incapacitated person. This is typical when the incapacitated person has no significant assets or income to manage, or when his/her only income is from a state or federal agency who has appointed a representative payee for those funds.

The permanent conservator is charged with managing the incapacitated person’s financial estate: his/her assets, liabilities, income and expenditures.

A guardian is appointed after the filing of a petition; the issuance and service of a citation from the Court; and a hearing before a Judge to determine that the incapacitated person is incompetent to manage his/her own affairs and that the proposed guardian is suitable.

The term “permanent” means that a guardian shall continue to serve until the death of the guardian, until the death of the incapacitated person, or until further order of the Court. The Court may remove a guardian for failure to fulfill his/her duties, may discharge a guardian if the incapacitated person becomes competent to manage his/her own affairs, or may approve the resignation of guardian.

TEMPORARY GUARDIANSHIP/CONSERVATORSHIP

The entire process for appointing a permanent guardian or conservator can take anywhere from six weeks to 9 months, depending upon the length of the docket of the local court and the need for a full-fledged trial in the event of a contested case. Very often, the incapacitated person has needs that are more immediate, and his/her welfare may suffer without interim assistance from a temporary guardian or conservator. Examples of this need include providing needed medical treatment, enabling hospital discharge to a new living situation (such as a nursing home), or paying overdue bills.

In such cases, the petitioner may file a motion for temporary guardianship or conservatorship. After a hearing regarding the immediate need, the Judge may appoint a temporary guardian or a temporary conservator. Such an appointment is limited in two ways. First, it expires after ninety (90) days, absent a motion to extend. Second, the authority of the temporary guardian or conservator is limited to dealing with the emergency.

LIMITED GUARDIANSHIP

Even a permanent guardianship decree may be limited by the Court, if the Judge finds that the incapacitated person’s incompetence extends to some, but not all, areas of his/her life. For example, a paranoid person may be incapable of trusting a doctor enough to consent to medical treatment, but be perfectly capable of deciding where he/she will live, or of voting for President. In such a case, limiting the guardianship to medical treatment decisions may be appropriate. If a guardianship decree contains any such limitation, the guardian should be careful not to overstep the bounds of his/her authority by trying to manage matters that the Court intended to leave to the discretion of the ward.

07/02/2020

The Importance of Estate Planning
I. Why is Estate Planning Important?
1) Provide support for your spouse, children and grandchildren;
2) Making specific bequests to your relatives or friends;
3) Protect assets from creditors;
4) Make gifts to charitable, educational or religious organizations;
5) Divide assets fairly among your descendants; and
6) Minimize administrative expenses and time delays in settling your estate.
7) Maintain your privacy;
8) Minimize estate taxes, if applicable.
a. Estate tax is essentially a transfer tax that is triggered by the event of your death.
b. There is only a $1,000,000 exemption for Massachusetts estate taxes. It’s a $11,580,000 exemption federally for an individual and a 23,160,000 for a married couple and any unused exemption amount is portable to a surviving spouse. “Portability” must be elected on the estate tax return of the deceased spouse. Massachusetts doesn’t allow for the “portability” of an unused exemption.
c. The Federal Estate Tax is 40% on the amount of the estate that exceeds $11,580,000.
d. Massachusetts rate is 0.8% to 16% on the value of the estate, depending on the value of the estate. Unlike the federal estate tax, the Massachusetts estate tax is imposed on the entire value of the estate if the exemption is exceeded.
e. In the attempt to avoid estate taxes, you must be very careful in how you structure your estate plan. Just as Medicaid has the “five-year look back,” the IRS has mechanisms in place to look at how you’ve handled your property, and treat certain dispositions as still part of the estate, even though you made efforts to divest yourself of that property.

II. Health Care Proxy:
1) Purpose: Essential estate planning document. Authorizes another to make all necessary health care decisions. It may or may not contain specific instructions, such as DNR instructions. Without a Health Care Proxy, you may need to have a guardian appointed for you in the event you become incompetent. This is a time-consuming and expensive process that can be easily avoided with the ex*****on of a Health Care Proxy.

2) Who to Choose as Health Care Proxy: Typically a family member is chosen. It is important to communicate one’s wishes regarding particular situations and procedures to the person who you choose as your health care proxy to make sure your wishes are respected. It is also important to identify a “back-up” health care proxy, in case your first choice becomes unable to serve.

3) An example of no health care proxy – “brain injury needs rehab”. Without a health care proxy in place the individual would likely require the appointment of a guardian to authorize treatment/rehabilitation services if the individual’s medical providers believe he/she lacks capacity to make informed medical treatment decisions.
III. Durable Power of Attorney
1) Purpose: Another essential estate planning document. A Durable Power of Attorney (DPOA) permits another to handle one’s financial affairs upon incapacitation. This prevents the expensive and time-consuming process of obtaining conservatorship over one who does not had a DPOA.

2) Who to Choose as Attorney-in-Fact: Frequently, a trusted family member or friend is chosen. This person is not supervised by the court, unlike a guardian or conservator, so there is a great opportunity for abuse, so it is important to be careful choosing the right individual. It is also important to identify a “back-up” attorney-in-fact, in case your first choice becomes unable to serve.

3) An example where there is an attorney in fact: An alzheimer’s patient could be kept at home with services in place. The attorney-in-fact could contract for services which would allow the patient to remain in the community longer than they would likely be able to otherwise.
IV. Wills:
1) Advantages of Having a Will
a. Specifically directs who will receive your property and
avoids disposition of property via rules of intestacy;
b. Reduce certain costs of settling your estate. (For example, you can direct that your personal representative will serve without the need to post a bond);
c. Appoint Personal Representative, or the court will do that for you. The Personal Representative is in charge of settling your estate.
d. Determine how your estate and inheritance taxes will be paid.

2) Disadvantages of Having a Will
a. The Probate Process: Probate is expensive and time consuming. Ways to avoid probate process include direct transfers and/or putting all of your assets into trusts, instead of putting your property into a will.
b. Wills are public documents. If you want to keep your affairs private, this can be avoided by using other estate planning tools instead, such as a trust.

3) Example of out-of-date will: real estate bequest, but high debts eliminates residual beneficiary
V. Trusts:
1) In General: Trusts solve the above-mentioned disadvantages to having a will. Moreover, there are situations where one wants to make a gift but does not want to give the recipient full control over the assets. For example, if the recipient is a minor child or someone who has special needs. A trust leaves the control of the assets to the trustee for the benefit of the beneficiary. Trustee can be anyone; including a family member or a professional.
2) Revocable Trusts: Revocable trust made during one’s life to avoid costly and cumbersome process of probate. They also provide privacy to financial details that would become public under a will.
3) Irrevocable Trusts: Good to preserve government benefits eligibility; limits to what the money can be used for. However, as the name suggests, it’s irrevocable. But it is a good tool for avoiding estate taxes.
4) Qualified Personal Residence Trusts: permits seniors to continue to reside in their home rent-free for a term of years and then passes the home to the younger generation at a reduced transfer tax. This also means that it takes a large asset out of the estate, which is important if you are trying to reduce your estate to below $1,000,000 to avoid Massachusetts estate tax. The important thing, however, is to pay rent to the younger generation \ once the term of years is up, because otherwise it will be included in your estate.
VI. Already have Estate Planning Documents? When to Review Your Estate Plan:
1) Upon spouse’s death;
2) Upon divorce;
3) Changes in estate values; and
4) Every three to five years. Why?
a. Professionals recommend updating your estate plan every three to five years due to the significant changes in the tax laws we see Congress passing all the time, with the most recent, the SECURE Act, become law on December 20, 2019, and taking effect on January 1, 2020. Just as you wouldn’t go five years without going to the doctor for a checkup, you shouldn’t go so long without seeing your lawyer to review your estate planning documents.


V. Life Insurance/Long-term care insurance
Life Insurance:
Pros:
1. Beneficiaries generally don’t pay income tax on it;
2. If you have more than $1,000,000 in your estate, your estate may have to pay estate taxes upon death. Life insurance proceeds can help pay for estate taxes.
3. Life insurance proceeds can be counted as part of your estate for the purpose of the estate tax unless you take the necessary to avoid this. To avoid life insurance from being counted as an asset for the purpose of estate taxes, the insured must give up all incidents of ownership on policy during life. “Incidents of ownership refers” to right of the insured to any economic benefit of the policy. This includes power to change beneficiary, cancel the policy, etc.
Cons:
1. Life insurance can be prohibitively expensive, depending on your age and health.
Long-term care insurance:
1. Most policies now cover home care and assisted living care as well as nursing home care. Premiums can be costly though. It is out-of-reach for most seniors. Some are uninsurable due to health problems so if you are interested in long-term care insurance, it is important to obtain it sooner rather than later. You should talk to both an insurance broker and financial advisor if you are interested in obtaining long-term care insurance. A financial advisor is best suited to advise you as to the impact a policy premium would have, if any, on your financial objectives.
VI. Gifts
1) Gifts are used as an estate planning tool.
a. But if you might be on Medicaid, consider the 5-year look-back. Gifts cannot be made with the “intent to defraud.”
b. Gifts can be used to help avoid estate taxes by divesting yourself of property before death.
c. Gifts of 15K or less do not count against your lifetime estate tax exemption. Gifts in excess of 15K reduce both the federal and state lifetime estate tax exemption.
2) Currently there is a $15,000 annual exclusion per recipient. That means if you have 10 grandchildren, you could give them a total of $150,000 (at $15,000 each) without being subject to the gift tax.
3) There is a so-called “med-ed” exclusion. This allows you to pay for the medical expenses or school tuition for a loved one without paying gift tax. However, it will not qualify for this exclusion unless you pay medical bills or school tuition directly to the institution. The advantage to the “med-ed” exclusion is not only do you avoid paying gift tax, but it does not use up part or all of your $15,000/per recipient annual exclusion.
4) If you choose to make gifts to grandchildren at death, those gifts can be subject to the Generation-Skipping Transfer (GST)Tax.