Year-End Gifting – Beware of Potential MassHealth Consequences


With the holiday season upon us, now is the time that many people make sizable cash gifts to children, grandchildren, and other loved ones.  They have often heard there may be tax consequences to making gifts, so they check with their accountant first.  Their accountant may have even told them making cash gifts during their lifetime made good tax sense. But they forget to consult an elder law attorney.  This omission can be costly because it can cause major repercussions months or even years down the road. 

Under current IRS regulations, you can gift up to $14,000 per person per year without having to file a gift tax return.  So long as your total gifts to one individual over the year total less than or equal to $14,000, the gift has no tax consequence to you.  Ok, so far, so good. Many people who want to be generous to their families, and perhaps reduce any estate tax on their deaths, choose to make these types of lifetime gifts.

Unfortunately, IRS rules only address gift giving from a tax angle… 

But what if you make a gift and then get sick- perhaps sick enough to require long term nursing home care? Those gifts you made can cause you to be disqualified from receiving vital MassHealth (Medicaid) benefits for a period of five years from the date of the gift. Even smaller monetary gifts much less than $14,000 a year can affect your future MassHealth eligibility!

Five years is a long time.  And with nursing homes routinely costing in excess of $12,000 per month, getting disqualified from MassHealth can be immensely costly to you. Running out of money paying for nursing home care can take a surprisingly short amount of time, which makes eligibility for MassHealth benefits desperately important.

On this point our clients protest “how can that be so . . . the IRS says gifts are fine and my accountant told me to do it.”  Put simply, MassHealth does not give a darn what the IRS allows you to gift.  They are different agencies with vastly different regulations, serving different purposes. 

Your accountant did not intend you any harm.  Instead, like most folks, your accountant probably had no idea about the potential MassHealth consequences of gifting and was thinking only of potential tax benefits to you. 

Does this mean you cannot ever make big gifts?  Not necessarily.  But we advise that clients retain a qualified elder law attorney before making sizable gifts so that they can confirm both the tax and MassHealth consequences of making gifts and take steps to minimize their risks. 

(Patrick G. Curley is a Certified Elder Law Attorney, is selected to MA Super Lawyers, and serves as a member of the Board of Directors of the MA Chapter of the National Academy of Elder Law Attorneys.  He practices law at Curley Law Firm LLP at 1 Common Street in Wakefield.  Do you have an Elder Law or Estate Planning question?  E-mail questions to or call 781.245.2222 x10 to be considered for future columns)

(image courtesy of cohdra @ morgueFile)

Curley Law Firm Attorneys Receive Super Lawyers Recognition

Wakefield, MA – Curley Law Firm LLP proudly announces that Attorneys Patrick Curley and Lucy Budman were selected for inclusion in Boston Magazine’s November 2013 Super Lawyers issue. 

Attorney Curley has been selected to MA Super Lawyers since 2011, and Attorney Budman has been selected to Massachusetts Rising Stars since 2012. Patrick and Lucy are selected for inclusion in the practice areas of Estate Planning and Elder Law. 

Super Lawyers makes it selections based upon peer nominations and research, comprehensive evaluation, and further peer review within the attorney’s primary area of practice.  Attorneys who have been admitted to the Massachusetts Bar for less than ten years are eligible to be named Rising Stars

“This is a tremendous honor for Curley Law Firm.  It is very humbling to be recognized by our peers for the work that we do for seniors and their families around Massachusetts,” said Patrick, Curley Law Firm’s Managing Partner.  Patrick added that “nothing is more gratifying to us than helping seniors and their families navigate the challenging legal issues that come with aging.”

Both Patrick and Lucy are among only two dozen Certified Elder Law Attorneys in the Commonwealth.  They are both active in public service to promote elder law issues.  Patrick serves on the Board of Directors of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), which is the leading elder law association with roughly 500 attorney members in the Commonwealth.  Lucy is active on MassNAELA committees and has a Masters of Law degree in taxation. 

Curley Law Firm LLP focuses on Estate Planning and Elder Law to help clients age with dignity and peace of mind.  More information about the firm can be found at

Mystic Valley Elder Services toasts to the new Elizabeth E. Boit Fund for Older Wakefield Residents


CAPTION: Patrick Curley, elder law attorney, and Ann Doherty, Mystic Valley Elder Services board member, both of Wakefield, and Dan O’Leary, Mystic Valley Elder Services executive director, of Melrose.

(Republished courtesy of Mystic Valley Elder Services)

WAKEFIELD: – Dozens of Wakefield residents and community leaders joined Mystic Valley Elder Services and former Boit Home board members on October 3, 2013 at the Americal Civic Center for a wine tasting and information session.

Mystic Valley Elder Services hosted the event to raise awareness of the new Elizabeth E. Boit Fund, which is managed by the community agency and available exclusively to Wakefield seniors.  Following the sale of the Boit Home retirement home, the former Boit Home Board of Directors gifted Mystic Valley Elder Services $425,000 to establish the Boit Fund. The Board gifted the balance of the proceeds to the agency’s Gap Endowment, a source of assistance for low-income elders in the Mystic Valley region.

The Elizabeth E. Boit Fund is now available to older residents of Wakefield (60+) with limited options, who need one-time assistance managing expenses. The Boit Fund has already helped Wakefield seniors cover medical devices such as hearing aids, health costs such as dental work, and home modifications, such as repairing a wheelchair ramp or entryway stairs.

“When Wakefield seniors apply for help from the Boit Fund, we view their life circumstances as a whole and always take the time to visit them at home,” said Dan O’Leary, executive director of Mystic Valley Elder Services. “Often, applicants are eligible for other services that will ease their burden and support their independence, such as home care or Meals on Wheels. We want to ensure that every senior in Wakefield receives the social services and community support that he or she may need.”

“One-on-one attention is standard operating procedure at Mystic Valley Elder Services, and that’s why our board knew we could place our confidence in this community resource,” said Patrick Curley, an elder law attorney and former Boit Home board president. “Mystic Valley’s commitment to both individual need and collaboration made them an easy choice to administer the new Elizabeth E. Boit Fund.”

Seniors may apply for assistance by calling Mystic Valley Elder Services at 781-324-7705. Seniors do not need to have a preexisting relationship with Mystic Valley Elder Services in order to apply.

Caporale’s Liquors of Wakefield donated wine tasting services to the event, and The Savings Bank provided door prizes which were awarded to two participants.

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Mystic Valley Elder Services partners with older adults, adults living with disabilities, and caregivers to provide critical, life-supporting care and services. For more information, visit or call 781-324-7705.

Beware of Hospital “Observation” Status

Q.   My husband was discharged from a five-day stay in the hospital to one month in a nursing home rehab.  The rehab told us that we had to privately pay for his short term rehab, which totaled more than $12,000.  Whatever happened to Medicare covering rehab? 

A.   Your husband fell into the costly “medical observation” trap.  Without formal “inpatient admission” to the hospital, his Medicare rehab benefit was never triggered.  Read on to protect yourself in the future.

For seniors to qualify for Medicare rehab benefits, a hospital must formally admit the senior as an inpatient for at least three days and three nights.  If the hospital then discharges the senior to a nursing home for rehab, Medicare picks up the short term rehab costs.  Historically, this worked pretty smoothly.  Now seniors are falling into the relatively new “medical observation” trap.

Due to recent Medicare cost control initiatives, hospitals now frequently accept seniors on “medical observation” status only.  This means that the Medicare rehab benefit is not triggered, and the senior is responsible for increased hospitalization costs as well as for all nursing facility rehab costs.

Incredibly, hospitals code many seniors as “medical observation” despite multi-day hospitalizations and treatment by the same doctors in the same hospital rooms as “inpatients”.

To make matters worse, in the chaos of a hospital admission, seniors rarely recall being told they are on medical observation status only.   Even to the extent that they are told, they never understand the financial implications.  It is days or weeks later that they learn the dire consequences when they get hit with a huge nursing home rehab bill.

These seniors deserve Medicare to cover their rehab expenses.  A 99 year old client recently fell and suffered terrible injuries to her face and body.  Without multi-day hospitalization, she could have died.  The hospital argued to my client’s shocked family that the senior would be “observed” rather than “admitted as a patient.”  When she arrived at the nursing home rehab, the family was told it would be nearly $500 per day for her rehab.

So what can readers do to protect themselves and their loved ones?

First, ask the hospital to confirm in writing whether the senior’s status is “medical observation” or “inpatient” admission.  If the hospital will not put it in writing, make certain they clearly confirm the senior’s admission status.

Second, do not play down the senior’s need for inpatient hospitalization.  Many of my clients are very proud – and rightfully so – but they sometimes play down their health impairments or injuries, and their corresponding need for help.  They grew up in the Great Depression area and they are self-reliant.  Plus they just want to return home from the hospital.  But if overnight hospitalization is required, it is far better for the senior to be admitted as an inpatient to avoid the risk of having to privately pay for any required nursing home rehab.

Third, for seniors hospitalized on “medical observation” status only, they must request to speak to the treating physician ASAP and demand a full explanation of why the hospital will not formally admit the senior as an inpatient.  Advocacy can help here!  The squeaky wheel gets the most grease.

Fourth, consider enlisting the help of your primary care physician to advocate to the hospital that you should be admitted as an inpatient rather than simply observed.

Fifth, if the hospital’s treating physician has not justified to the senior’s satisfaction why the hospital will not admit the senior as an inpatient, contact the hospital’s ombudsman and administrators to plead your case.

I cannot downplay the importance of this issue.  To the extent that a senior requires rehab in a nursing facility, observation status means that they could be forced to privately pay the nursing facility tens of thousands of dollars.  The time to fight this decision is during the hospitalization.

Sixth, consider filing a Medicare appeal of the hospital’s decision.

We and other patient advocates are pushing for Medicare reforms to clarify that all seniors hospitalized for three days qualify for Medicare-covered rehab, regardless of observation vs. inpatient status. But in the current political climate, such reforms stand little chance of passing Congress.  So you must become your own advocate in the hospital.

I will conclude by warning that even if a senior is formally admitted as an inpatient to the hospital, Medicare covered nursing home rehab can terminate a lot sooner than the senior requires to safely return home.  For this reason, I advise families in this scenario to work with a qualified elder law attorney to discuss planning options to protect the senior’s home and savings, and to help the senior qualify for programs that can help them return home with the assistance they may require.

(Patrick G. Curley is a Certified Elder Law Attorney, is selected to MA Super Lawyers, and serves as a member of the Board of Directors of the MA Chapter of the National Academy of Elder Law Attorneys.  He practices law at Curley Law Firm LLP at 1 Common Street in Wakefield.  Do you have an Elder Law or Estate Planning question?  E-mail questions to or call 781.245.2222 x10 to be considered for future columns).

Asset Protection Seminar at the Danvers Senior Center

On Wednesday, July 10, 2013, the Danvers Senior Center will offer a free presentation by Attorneys Patrick Curley and Lucy Budman entitled “Protect your Home and Savings against Medicaid, Nursing Home Costs, and Unnecessary Taxes”.

The presentation will take place at the Danvers Senior Center, 25 Stone Street, Danvers from 10:30 a.m. – 11:30 a.m.

The presentation will focus on specific strategies seniors and families can put in place today to protect their homes and their savings against the potentially devastating costs of nursing home care. 

Attorneys Curley and Budman are two of the very few attorneys in the state to have earned the esteemed designation of Certified Elder Law Attorney and to be named to 2012 Massachusetts Super Lawyers.  Attorney Budman is also a Tax Specialist and holds a Masters of Law degree in Taxation.

“With looming cuts to Medicare and Medicaid (MassHealth) and the potential of higher taxes, more than ever before seniors need to take action to preserve and protect what they have so carefully saved over their lives,” said Attorney Curley.  “This presentation will benefit all seniors regardless of asset values.  Asset protection is as important to a senior with modest assets as it may be to a senior with more valuable assets.  The key is for seniors or their families to learn their options and take action so they can share our clients’ peace of mind that they are protected.” 

“Taxes are on everyone’s mind with the recession and recent changes in tax laws,” said Attorney Budman.  “I earned a Masters of Law degree in Taxation so that I could help people engage in Estate Planning and Asset Protection while keeping their tax burden to a minimum. For many seniors their home is their most valuable asset and mistakes in planning can mean taxes owed that could have been avoided when the home is sold.”

The Danvers Senior Center offers a weekly “Breakfast Club” that features a speaker on topics important to seniors.  The Club schedule is available by calling the Senior Center at 978.762.0208 and/or visiting their website at

Curley Law Firm LLP Attorney to Teach at MBA Seminar on Trusts

Wakefield, MA – Curley Law Firm LLP is pleased to announce that Attorney Lucy Budman will serve on the faculty of the Massachusetts Bar Association’s (MBA) upcoming seminar entitled “How to Draft a Trust That Works.” The November 15th seminar at the MBA’s headquarters will be attended by dozens of experienced Estate Planning attorneys from across the Commonwealth.

Attorney Budman said that “my objective in teaching this seminar is to help other Estate Planning attorneys better serve their clients, especially elders and those with special needs.  Too often, clients bring us previously-drafted Trusts that completely fail to achieve their planning goals.  These poorly drafted Trusts can be very costly to clients if not corrected because they can expose the clients’ assets to nursing home costs and taxes that could have been avoided or minimized through proper drafting.  The attorney attendees at the seminar will learn how to correctly draft Trusts to better protect their clients.”

Attorney Budman is one of only 23 Certified Elder Law Attorneys in Massachusetts and has a Masters of Taxation Law degree from Boston University School of Law.  Lucy practices law with father and son Attorneys Mark and Patrick Curley (also a CELA).   Curley Law Firm LLP is one of the largest law firms in Massachusetts focused exclusively on Will and Trust planning, Medicaid (MassHealth) planning and applications, and Asset Protection.  More information about Lucy and Curley Law Firm LLP can be found on the firm’s website:

New Trust Laws in Massachusetts


Q.  I have heard that major changes in Massachusetts Trust Law were underway. Is that true? 

A.   Yes, you heard it right. After many decades under the old laws, Massachusetts passed a completely overhauled probate law that went into effect at the beginning of April. Now, in July, the new Massachusetts Uniform Trust Code is here and tackles Trusts also!

On Sunday, July 8th, the Governor signed a new law passing the Massachusetts Uniform Trust Code (MUTC). This law is effective immediately. The new law applies to all Massachusetts Trusts with only limited exceptions, whenever they were created. At Curley Law Firm, we have been following the implementation of the new law to help guide our clients who have Trusts or are thinking about Trusts as to how the new law impacts them.

The new law significantly overhauls how Trusts (revocable, irrevocable and testamentary) work in Massachusetts. If you are the Trustee of a Trust, the new law also creates serious new fiduciary duties. If you are acting as a Trustee you can be held personally liable for getting it wrong. Working with an expert Attorney helps the creator of a Trust protect themselves and their families and helps protect Trustees from accidentally breaching their fiduciary duties.

The law is complex and the full impact of some of the provisions is still not completely clear, but below are a two key changes that may apply to you if you have a trust or are acting as a Trustee:

  1. Trustees now have a duty to keep all Trust beneficiaries informed. That includes providing all beneficiaries with the name and address of the Trustee within 30 days of being appointed and providing annual accountings to current beneficiary who have not specifically waived the right. If you are the Trustee of a Trust, it is critical to make sure you are in compliance with your duties. We work closely with our Trustee clients to make sure they have all the tools they need to fulfill their responsibilities; and
  2. Trust modification has become easier. In many cases, if all the interested parties in an Irrevocable Trust agree, the Trust can be changed without special Probate Court intervention. For families who wish to change existing Irrevocable Trusts, the MUTC is intended to make the process more straightforward.

The new law carries a number of fixes for issues raised under the Massachusetts Uniform Probate Code (MUPC) which went into effect in April.  Two important issues that will apply to many of our clients include:

  1. Clarifying that so called ‘informal’ personal representatives will be able to sell real estate without a license if they are acting under a will with a power of sale. Previously, title insurance companies refused to give clean title without a formally appointed personal representative or a license to sell) ; and
  2. A new fee schedule. Fees for many types of probate court transactions are increasing. For many of our clients, the fees and time delays of the probate court are a reason to plan to avoid probate.

A well drafted Trust can protect you and your family from everything from probate to taxes, creditors and long term care costs, depending on your planning goals, but without planning with an expert, you may find that your Trust has unintended consequences under the new law.

Be sure that your attorney understands the ins and outs of the new Uniform Trust Code and can advise you about how to plan with a Trust for you and your family or how to carry out your duties as a Trustee.

(Lucy J. Budman is a Certified Elder Law Attorney and holds a Masters of Law in Taxation.  She practices law at Curley Law Firm LLP at 1 Common Street in Wakefield.  Do you have an Elder Law or Estate Planning question?  E-mail questions to to be considered for future columns)

Contact Us!

Do you have an Elder Law or Estate Planning question? E-mail questions to or call 781.245.2222 x10 to be considered for future columns).

About Curley Law Firm LLP

Serving clients throughout Massachusetts, Curley Law Firm LLP draws upon more than four decades of combined Estate Planning and Elder Law experience to ensure that you can achieve your planning goals.

Attorneys Patrick Curley and Lucy Budman are two of fewer than two dozen Certified Elder Law Attorneys (CELA) in Massachusetts. Attorney Mark Curley has practiced in the areas of Estate Planning and Elder Law for over three decades.

The value of working with a firm with CELAs on the team is the peace of mind you receive - knowing that you will get the very best advice available to protect yourself, your family and your assets. A CELA is a recognized expert in legal matters dealing with Estate Planning and Elder Law including Trusts, Wills, Asset Protection against Medicaid and nursing home costs, Medicaid (MassHealth) benefits planning and applications, Probate and Trust administration, Guardianship and Conservatorship, and VA benefits planning.

At a time when many lawyers claim to practice "elder law", having a CELA-led team working on your planning means having one of the very few experts in the Commonwealth on YOUR team.

For experienced representation and quality service from attorneys who will help you achieve your planning goals, please schedule a confidential Initial Consultation by calling us at (866) 406-8582 or visit our website at




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