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Maintaining control over lifetime decision-making and your estate

Stay in control of your estate

by Susan Mooney, Esq.

Maintaining control over lifetime decision-making and your estate

As a practicing estate planning and elder law attorney for thirty-five (35) years, the best advice I can give to any client is that if you want to maintain control over your future and want your wishes to prevail regarding your future care during lifetime and your post-death estate distribution, then preplanning for your lifetime needs is critical. Establishing simple legal documents does not have to be elaborate or expensive and can save you and your family significant costs and potentially a lot of anguish and crisis planning later.

 

Further, you will maintain control over who will act in the roles of your decision-makers in the future, in the event you are unable to act on your own behalf during lifetime. Simple planning can protect you from Court intervention and from others, who may not be your choice of persons to control your future decisions or your estate.

 

The first step in any estate plan should include documents related to life-time planning and protections, such as a Durable Power of Attorney and Health Care Proxy. These documents insure that during lifetime an individual’s financial and medical needs, intentions and wishes are followed. These documents take care of you during lifetime (while other documents, such as Wills and Trusts relate to division of your belongings and other assets after your death, which is of course important as well, but not as important as taking care of you personally and maintaining control during your lifetime).

The following are suggested planning to be considered in establishing or reviewing an estate plan to meet your individual goals.

 

IN MY OPINION THE DURABLE POWER OF ATTORNEY AND THE HEALTH CARE PROXY ARE THE TWO (2) MOST IMPORTANT LEGAL DOCUMENTS FOR LIFETIME PLANNING AND PROTECTION TO MAINTAIN CONTROL OVER YOUR FUTURE DECISION-MAKING, however, I have also included other important estate planning suggestions to consider.

 

  1. DURABLE POWER OF ATTORNEY: A Power of Attorney is a very simple and inexpensive legal document that allows you to designate an individual who is authorized to act in your place during your lifetime, to conduct and participate in financial transactions on your behalf. This person, called your agent or attorney-in-fact, should be able to conduct any financial transaction in your place if you are either unable to do so, or if it is simply not convenient for you to do so, either temporarily or permanently. By executing a Power of Attorney, you avoid the risk of the Court appointing a Conservator to manage your affairs if you were to become unable to do so.

 

  1. HEALTH CARE PROXY: The Health Care Proxy is the single most important legal document that any individual can have. It is a simple and inexpensive legal document that appoints the person of your choice as your health care agent, to speak on your behalf for medical decision-making ONLY in the event you are not legally competent or conscious to do so. It is important to name agents to avoid a Court appointed Guardianship, which is costly and can take weeks or months when a decision might be needed urgently.

 

  1. HIPAA RELEASE: Separate and apart and in addition to a Health Care Proxy, a HIPAA release will allow your medical team to release information to those you name on the HIPAA release, whether you are competent or not at the time. Remember the Health Care Proxy will ONLY allow the release of information to your Health Care agent in the event you are not competent or conscious.

 

  1. WILL: Determine if you need a new Will, or if you need to update or amend a current Will so that your post death wishes will be followed regarding distribution of your estate.

 

  1. TRUSTS: Determine if a Trust is right for you. A Trust may be advisable if there is a specific need for holding assets in Trust, such as protecting assets for minor children or disabled individuals, or to avoid probate, or for tax planning, or in some cases an Irrevocable Trust for long term care planning.

 

  1. BENEFICIARY DESIGNATIONS: Review and update all assets that allow you to designate a beneficiary, such as Life Insurance, Annuities, IRAs, 401ks, Retirement plans, etc. Assets with beneficiary designations are NOT controlled by your Will.

 

  1. REVIEW OWNERSHIP OF BANK AND INVESTMENT ACCOUNTS: Bank accounts and investment accounts generally allow for PAYABLE ON DEATH (POD) or TRANSFER ON DEATH (TOD) designations. This form of ownership is generally advisable, as opposed to adding children or other relative’s names to joint ownership on your accounts. Joint ownership is generally ill advised, since your assets would then be exposed to the risks of other joint owners, such as their accidents, divorces or other financial risks and liabilities.

 

  1. LONG-TERM CARE PLANNING: Is there any planning advisable or recommended for you in case long-term care is needed or imminent? While pre-planning is advised, in the long-term care category many folks believe that planning must be completed five (5) years prior to the need for long term care.

However that is NOT always the case. Often planning can be beneficial even at the last minute when someone is already in nursing home care.

DO NOT PRESUME IT IS TOO LATE FOR LONG TERM CARE PLANNING IF YOU DID NOT PLAN FIVE (5) YEARS IN ADVANCE.

Remember that every individual’s situation is unique, whether related to assets, health issues, or family situations. It is important that you receive personal advice related to your specific situation and estate planning needs from qualified professionals.  Nothing contained in this article is intended as legal advice specific to your personal situation. Please consult an estate planning or elder law attorney of your choice to review your personal planning and circumstances.

Our estate planning attorneys will be happy to explain the estate planning process.  The first consultation is always free of charge.

Estate Planning can feel very overwhelming!  Call us to talk about your estate taxes or estate planning in general. The first consultation is always free and our Attorneys are ready to assist you!

Legal Liability When an Algorithm Screens Tenants

District Court Allows Discrimination Suit to Proceed
By Christopher R. Vaccaro
Special to Banker & Tradesman

Landlords of apartment buildings in Malden and Canton hired a Texas company to screen tenant applications automatically, prompting a pair of rejected tenants to file a court challenge.

Last month the U.S. District Court of Massachusetts fired a warning shot to­ward tenant-screening firms, in Louis v. Saf­eRent Solutions LLC.

Mary Louis and Mon­ica Douglas are self-de­scribed Black women. They both hold Sec­tion 8 housing vouchers guaranteeing most of their rent payments. Louis applied to Metropolitan Management Group LLC for an apartment at Granada Highlands in Mal­den. Douglas applied to a different prop­erty manager for an apartment at Millside at Heritage Park in Canton. Their applica­tions were forwarded to SafeRent Solu­tions LLC, a Texas-based firm offering ten­ant-screening services to landlords and real estate professionals nationwide.

SafeRent applies a proprietary algorithm to rental applications, using credit histo­ries, bankruptcy records, past due ac­counts, payment performance and eviction histories. The algorithm generates a “Saf­eRent Score” that is intended to assess the likelihood of an applicant’s lease default. The SafeRent Score disregards the benefits of tenant housing vouchers.

Metropolitan rejected Louis’s applica­tion based on her SafeRent Score. Louis challenged the rejection, offering employ­ment and landlord references, but without success. Douglas’s application was initially rejected because her SafeRent Score re­flected credit history and landlord-tenant problems, but it was later accepted after she appealed with assistance from a hous­ing advocacy group.

Louis and Douglas filed a putative class action lawsuit in federal court against Saf­eRent and Metropolitan for violations of federal and state antidiscrimination laws. They alleged that SafeRent’s algorithm gen­erated lower scores for Blacks, Hispanics and voucher-holders, who often have less income and poorer credit histories, result­ing in denials of rental housing applica­tions based on race and use of vouchers. They also sued SafeRent for unfair and de­ceptive practices in violation of Massachu­setts General Laws Chapter 93A. Commu­nity Action Agency of Somerville Inc. (CAA), which provides housing services to underprivileged individuals, joined the suit as a plaintiff.

SafeRent and Metropolitan moved to dis­miss the lawsuit, arguing that Louis and CAA lacked standing, and that the plain­tiffs failed to state actionable claims against them. Defendants often file  mo­tions to dismiss early in litigation, but the tactic rarely succeeds, because judges hearing those motions must assume, for purposes of the motion, that the plaintiffs’ factual allegations – but not legal conclu­sions – are true.

Court Finds Disparate Impacts

Federal and state laws prohibit discrimi­nation in the sale and rental of housing be­cause of race, color, religion, sex, familial status, and national origin. Massachusetts law also prohibits discrimination against voucher holders. The court easily found that Louis had standing to file suit, because she alleged that the defendants’ actions caused her application to be wrongfully de­nied, requiring her to accept costlier but less desirable housing in a neighborhood with a higher crime rate. The case for CAA’s standing was trickier because CAA itself was not denied housing by the defen­dants. Nonetheless, the court ruled that CAA had standing because SafeRent’s prac­tices, if found to illegally discriminate, im­paired CAA’s efforts to fulfill its mission of locating housing for its clients.

SafeRent also argued that antidiscrimi­nation laws do not apply to it in this case, because SafeRent is not a landlord and it does not ultimately decide whether to ac­cept or deny rental housing applications. The court disagreed, noting that SafeRent’s screening service influences housing deci­sions and, according to the plaintiffs’ com­plaint, causes prohibited discrimination.

The court next discussed disparate im­pact claims under anti-discrimination laws. Such claims are actionable under federal and Massachusetts law, when directed at practices that have disproportionately ad­verse effects on protected classes, without legitimate rationales. The court summa­rized the plaintiffs’ allegations that SafeR­ent’s reliance on credit history is misplaced, has a disparate negative impact on Blacks, Hispanics and voucher-holders, and limits their housing opportunities. The court ruled that these allegations were sufficient for the plaintiffs to proceed with their hous­ing discrimination claims against the defen­dants. However, the court dismissed the plaintiffs’ Chapter 93A claims, ruling that their allegations did not suggest that SafeR­ent’s conduct was egregious enough to sup­port a claim under that statute.

The court denied the defendants’ mo­tions to dismiss the housing discrimination claims, but there is no certainty that judg­ment will someday be entered against Saf­eRent and Metropolitan. There remains much work to do. The plaintiffs must prove that SafeRent’s algorithm employs data with little relevance to whether applicants are worthy tenants, causing impermissible discriminatory impacts. SafeRent and Met­ropolitan will strive to prove that SafeR­ent’s algorithm reliably and fairly predicts whether applicants are likely to default, without significant adverse impacts on pro­tected minorities.

While the parties gather data for their experts, SafeRent might want to revisit its methodology.

Download the article as seen in  Banker & Tradesman on June 26, 2023. Learn more about Christopher R. Vaccaro.

Court Rules COVID Shutdown Doesn’t Cancel Rent

Shrewsbury Tenant Argued “Frustration of Purpose” Doctrine
By Christopher R. Vaccaro
Special to Banker & Tradesman

As the effects of the COVID pandemic wane, courts continue to review lawsuits prompted by business shutdowns and whether they excuse tenants from lease obligations.

Many disrup­tions from the COVID pan­demic are now behind us, but litigation related to those disruptions continues to work its way through Massachu­setts courts.

Last month, the Appeals Court decided Inland Commercial Real Estate Services, LLC v. ASA EWC, LLC, involving a commer­cial tenant’s failure to pay rent. The tenant signed a 10-year lease in 2016, to operate a “European Wax Center” in Shrewsbury. Three years later, in March 2020, Gov. Char­lie Baker issued COVID-19 Order No. 13, re­quiring non-essential businesses, including the wax center, to close. The tenant com­plied with the order and did not reopen until July 2020, after the governor issued a new order ending the shutdown.

After the tenant failed to pay rent and water charges for March through Septem­ber 2020, the landlord sent it a notice to quit, claiming over $55,000 in delinquent rent, some of which accrued during the three-month shutdown period. The tenant made a partial payment, but did not bring the rent current. The landlord terminated the lease and filed suit in superior court to evict the tenant.

In contesting the eviction, the tenant ar­gued that it should not have to pay rent for the three-month period when the COVID shutdown order prohibited it from doing business. The tenant supported this argu­ment with the often-invoked, but rarely suc­cessful, frustration of purpose doctrine.

The Supreme Judicial Court summarized the frustration of purpose doctrine in a 1991 decision, as follows: “Where, after a con­tract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occur­rence of which was a basic assumption on which the contract was made, his remaining duties to render performance are dis­charged, unless the language or the circum­stances indicate the contrary.” When con­sidering this defense, courts look at whether unforeseen circumstances effec­tively negated the value of the contract to the party who invoked the defense.

Unforeseen Circumstances Can Negate Contracts

In the case of the Shrewsbury wax cen­ter, the Superior Court judge rejected the tenant’s frustration of purpose defense, and entered judgment awarding the landlord possession of the leased premises and $86,841 in damages. The tenant appealed, and the Appeals Court offered a useful anal­ysis of the doctrine, before affirming the Su­perior Court’s judgment.

The Appeals Court noted that the frustra­tion of purpose doctrine excuses a party from performing its contractual obligations “where unanticipated supervening events require it.” For the doctrine to apply, the purpose that is frustrated must be so intrin­sic to the reason for the contract, that the contract makes little sense without it. Courts are generally reluctant to apply the doctrine, preferring instead to preserve the certainty of contracts.

The Appeals Court also noted that most courts decline to apply the doctrine to tem­porary business closures caused by govern­ment shutdown orders. When evaluating frustration of purpose defenses in govern­ment shutdown cases, courts consider the duration of the forced closures, the length of the lease term, how far into the lease term the closure occurred, whether tenants could reopen after restrictions were lifted, whether tenants remained in possession of the prem­ises during the shutdown and whether ten­ants could use their premises for purposes not barred by the shutdown order.

Temporary Shutdown Not a Dealbreaker

Taking these factors into account, the Ap­peals Court found the tenant’s frustration of purpose argument unpersuasive. It noted that the tenant did not show that its tempo­rary closure substantially frustrated the pur­pose of the lease. The tenant was already three years into its lease when the shutdown occurred, the three-month shutdown was relatively short compared to the 10-year lease term, the tenant remained in posses­sion of the premises during the shutdown and could sell goods from the premises, and the tenant was able to resume its business after the shutdown was lifted.

The Appeals Court also rejected the ten­ant’s argument that a temporary frustration of purpose should excuse the tenant from paying rent during the shutdown period. The court found that the doctrine provides relief to parties who see the anticipated benefits of their bargains destroyed by un­foreseen events, not merely interrupted on a temporary basis.

The Appeals Court went on to state that even if the doctrine were available on a temporary basis, the tenant’s obligation to pay rent during the shutdown period would only be suspended, not discharged alto­gether. The court affirmed the Superior Court’s judgment.

This decision shows that the tenants who invoke the frustration of purpose doctrine to avoid rent payments will most likely be frustrated by unfavorable court rulings.

Download the article as seen in  Banker & Tradesman on June 26, 2023. Learn more about Christopher R. Vaccaro.

Your Will is Safe with Dalton & Finegold!

Don’t hide your Will under a chair cushion like Aretha Franklin!

by Andrea Rutherford, Esq.

Estate Planning made headlines last week…

with Michigan Court upholding Aretha Franklin’s 2014 Will – even though it was handwritten (and barely legible), written on a notepad and hidden under a chair cushion.  The Will differed in several respects from a 2010 version found in a safe.

The worst part of this story is that Aretha’s four kids have spent five years and nearly One Million Dollars fighting over the Will.  And two of her children are reportedly not speaking to each other.

Don’t let this happen to you!

First of all, the outcome of this case would have been worse in Massachusetts or New Hampshire. Here, a Will has to be signed by two witnesses – and they can’t be relatives or beneficiaries. Since neither of Aretha’s Wills were witnessed, she would have been considered intestate, ensuring an even longer and more expensive court fight.

At Dalton & Finegold, all the Wills we draft are witnessed and notarized.

Second, keep your estate planning documents in a safe place. Or, even better, have Dalton & Finegold store your originals. We keep our clients’ documents indefinitely in secure storage. All your heirs have to do is give us a call.

Third, review your estate plan regularly.  The disputed issue in the Aretha Franklin case was a provision requiring two of her sons to earn business degrees before they inherit.  These kinds of clauses are not uncommon. But circumstances change and a provision that makes sense when your kids are young maybe inappropriate when they are older.

Dalton & Finegold attorneys will be happy to review your existing estate plan, prepare a summary and highlight any provisions that might be out of date.

Call us to talk about a new or existing estate plan. The first consultation is always free and our Attorneys are ready to assist you!

Avoid DIY Estate Planning!

Althea Volper, Esq.

 

by Althea B. Volper, Esq.

Creating your own estate plan online can be tempting as a convenient and cost-saving option.  There are many websites offering cheap (or free) estate planning documents.  Don’t do it!  These websites are no substitute for professional legal advice from a licensed, experienced estate planning attorney.  The risks of cutting corners on your estate plan far outweigh the savings.  There are many pitfalls associated with creating an estate plan yourself online.  For example, your do-it-yourself (DIY) estate plan may:

 

  1. Fail to meet the legal requirements: Laws regarding Wills and other estate planning documents such as Powers of Attorney, Health Care Proxies and Advanced Directives vary from one state to another.  Using an online template may not ensure that your estate planning documents meet the legal requirements in your jurisdiction.
  2. Contain ambiguity and errors: Websites offering online Wills and other estate planning documents rely on your inputting information to produce documents.  This means that any mistakes or unclear language that you enter becomes part of your legal document—this can lead to confusion, legal disputes, and even court intervention.
  3. Lack customization: DIY estate planning websites often utilize one-size-fits-all templates, which fail to consider your and your family’s unique circumstances.
  4. Lack professional legal advice: When preparing your own estate planning documents using an online interface, there may not even be a human reviewing your plan before it is produced, let alone an experienced legal professional.  Effective estate planning involves complex issues, such as asset protection for beneficiaries, tax implications, and guardianship arrangements.  An estate plan produced without professional legal review may contain errors or omissions that could have long-term consequences for you and your loved ones.
  5. Lack privacy and security: We all know that online platforms can collect, store, or sell your personal information and data, including sensitive financial information and details about your family members.  Entering this information into an unsecured online platform runs the risk of this information falling into the wrong hands.

 

To avoid these pitfalls, consult our team of experienced estate planning attorneys to set up a complimentary consultation.

Our Estate Planning Attorneys can tailor a Trust to your family’s needs.   The first consultation is always free of charge.

If you have questions about your Estate Planning needs, our Attorneys are ready to assist you!