Articles Posted in Wills and Estates

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When organizing your Massachusetts will and estate, you may wonder about the extent of the powers and responsibilities given to those with titles like attorney-in-fact, health care proxy, trustee, guardian, or conservator. Estate planning includes assigning responsibility to someone in the course of your lifetime in the event you are unable to handle your own affairs. One of the documents you may use is a Power of Attorney. The Commonwealth Appeals Court recently issued a decision in Petriello v. Indresano (14-P-135) that reviewed whether or not the woman who acted as a health care proxy agent, and eventual designated agent with power of attorney, had the right to apply for harassment prevention orders against the children of her deceased domestic partner of 45 years. The Appeals Court ruled that a Power of Attorney can apply for the orders on the person’s behalf but ultimately decided to remand the case on another issue.

In Petriello, the court discussed the effect of a written power of attorney, which they considered to be a legal issue and not one for the jury to determine. Case law established that the court, when evaluating a power of attorney document, must put themselves in the place of the parties and give the words in the instrument their plain and ordinary meaning. A power of attorney is read like any other contract and is interpreted as a whole with effect given to all the provisions to enact its overall purpose. As the court reviewed the power of attorney instrument in Petriello, they felt the document gave explicit authority to the agent to “exercise or perform any act, power, duty, right or obligation” that the woman had, as if she was personally present. The power of attorney document granted the agent full authority and was executed soon after she designated her as her health care agent and in the midst of the conflict with her deceased domestic partner’s family.
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In Escobar vs. Universal Health Services, a Massachusetts couple’s daughter was treated at a counseling service that participated in the Medicaid program, MassHealth. The parents took their daughter, who was a MassHealth benefits recipient, to this service after she experienced behavioral problems at school. The daughter was treated by staff who had no professional license to provide mental health therapy. The parents became concerned when they began to recognize that the clinical director was not meeting with their daughter. The daughter was transferred to a different staff member, but this staff person was also unlicensed and proved to be unsatisfactory to the parents.

The third staff person held herself out to be a psychologist with a Ph.D., but was someone who trained at an unaccredited online school and was rejected for a professional license. This woman diagnosed the parents’ daughter with bipolar disorder. The daughter’s problems at school continued, and the school insisted that she see a psychiatrist in order to remain at the school. The parents relayed this to the “psychologist,” who referred her to a nurse, while calling her a doctor.

This fourth staff member then prescribed a medication called Trileptal for the purported bipolar disorder. The daughter quickly began having an adverse reaction to the drug. The daughter attempted to call the nurse for guidance, but her messages were unreturned. The daughter had a seizure a week after she took the medicine. The daughter was hospitalized, and the parents expressed their frustration at the counseling service for the lack of supervision and failure to return calls. The daughter had a second seizure a month later and died as a result.
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The construction of a will or trust in Massachusetts can determine whether or not the estate of a deceased person is distributed according to his or her wishes. The placement of punctuation or the absence of two words can completely change the meaning of a document and how assets are issued. The structure of the document can certainly affect how or whether the assets are taxed upon transfer.

At the end of last year, the Massachusetts Supreme Judicial Court issued a ruling on one of the trusts created among a series of trusts for the benefit of a couple’s children and grandchildren. The couple each created trusts in their names to provide income for their sons, preserving principal for future generations. The trust under the patriarch’s name was irrevocable upon his death and established two trusts for his wife’s benefit during her lifetime. She was granted the power of appointment over the marital trust, and when she passed, the principal of the patriarch’s trust was divided into two “share trusts” for each son. The sons had the power of appointment over these trusts to “one or more of the Donor’s issue.”

These share trusts were not subject to the Federal generation skipping transfer (GST) tax, which taxes property transfers made to grandchildren that were not subject to the estate tax upon the trust’s initial transfer. This tax was enacted in 1986 and offered exemptions up to $3.5 million. This tax was enacted after the patriarch’s death, but while the matriarch still lived, so she created her own trust to help avoid the taxation of the GST. She used her power of appointment over the marital trust by appointing it to her new trust, directing that amounts equal to the exemption be held in a family trust. The trust explicitly stated that her grandchildren and remote descendants are fully exempt from the GST tax.
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Assumption of the risk is a term you may have heard while participating in an activity that is either strenuous or involves an amount of danger. A company may ask you to sign a waiver of liability before you or a friend bungee jumps or rides across a zip line. Waivers of liability can also be found at gyms or participant sporting events. When death or injury happens to a participant in an athletic activity, the tragedy is amplified by the fact the injured person was attempting to enhance, not hinder, health. If injury or death occurs, questions may arise as to whether or not a signed waiver of liability can act as a complete shield to accountability in the civil justice system.

Recently, the United States District Court of Massachusetts rendered a Memorandum and Order in Angelo v. USA Triathlon, which supported a portion and denied a portion of the organization’s Motion for Summary Judgment. The deceased person was a member of a Triathlon association and signed an agreement to waive and release the liability of the organization. During the triathlon, the man died during or shortly after the swimming event. The wife filed suit on behalf of his estate and alleged that the organization wrongfully caused his death, pain and suffering prior to his death, and infliction of emotional distress as a result of the company’s gross negligence. The triathlon company moved for partial summary judgment, based on the signed waiver of indemnity agreements.
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As you are creating your estate plan in Massachusetts, it is essential to have an attorney who can help create and organize all the documents your family will need to make decisions when you are unable to do so. Last wills are drafted documents that are meant to reflect the intentions of the estate owner, and they usually identify who receives a share or item of the estate. While this may seem straightforward, failure to properly write a will can lead to confusion and extensive litigation.

The recent Massachusetts appellate case Lowell v. Talcott provides an example of this sort of litigation. This case involved wills executed by a couple who left much of their property in trust for each of their daughters and their “issue.” One of the couple’s daughters married and had two grandchildren with her then-husband. The daughter and the husband separated, but during the process, she became pregnant with another child by a different man before the divorce was final. The question for the Massachusetts appellate court was whether the third granddaughter should be considered an “issue” of the testators’ daughter and receive her share of the testamentary trust.

The daughter’s husband was listed as the father on the birth certificate, and the husband was aware that he was named, yet he took no steps to correct the certificate. The only recorded disavowal of his paternity occurred when the third granddaughter was surrendered to the state’s care for adoption. After several decades, the granddaughter later contacted the trustees of the estate, presenting her birth certificate and claiming that she is a beneficiary of the testamentary trust.
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