Sunday, February 26, 2017

Durable Power of Attorney or Guardianship?

   Right about the time I first started practicing law about 38 years ago, the Massachusetts legislature passed a statute allowing Powers of Attorney to be 'Durable', that is, they remained in effect even after the person executing it became legally incompetent. Prior to that, if a person became legally incompetent, or unable to communicate their wishes, the only option for handling their legal affairs was to petition the Probate & Family Court for a guardianship proceeding on that person's behalf. This procedure is expensive, time-consuming, and could lead to extensive litigation if the heirs-at-law do not agree on who should serve as guardian, or even if a guardian is necessary.
   A Durable Power of Attorney is an essential estate planning tool for everybody. The cost of preparing one is relatively nominal, and it allows the trusted person you choose to continue handling your affairs, whether it be running your business, paying your bills, or hiring caretakers and selling property. The DPOA can remain dormant until you need it, and can be revoked at any time, by a writing to that effect. Best of all, it is immediately available when needed (provided you left an original where it can be easily accessed), and costs you and your family nothing to use.
   Nowadays it is only necessary to bring a formal guardianship under a few circumstances:

     1.  If the Protected Person failed to execute a Durable Power of Attorney prior to becoming incompetent, or losing their ability to communicate (as from a stroke). An incompetent person cannot legally execute a DPOA.
    2.  If the executed Power of Attorney is challenged due to undue influence or financial abuse on the part of the named attorney-in-fact, which is often alleged by concerned family members or Elder Protective Services.
    3.  If the Protected Person suffers mental illness or dementia, and needs to be prescribed psychotropic medication, Massachusetts law requires that the guardian present a medically necessary Treatment Plan to be approved by the Probate Court, which describes the medication and dosages, and which will monitor the treatment. The Court will appoint specialized counsel to represent the Protected Person in the proceeding, called Rogers counsel after the case establishing the procedure, and require a new treatment plan to be approved periodically. If the Protected Person's estate cannot afford the cost of Roger's counsel, the Commonwealth will pay for it.
    In sum, for almost all situations a Durable Power of Attorney is a must for proper estate planning, and will save you and your heirs substantial grief and monies if properly utilized.
     As always, legal advice is very fact-specific, and life decisions should not be made on the basis of an article. If you need assistance or answers in this area of the law, I can be contacted directly, or through my web site at

Alimony Law in Massachusetts - Part I: The Reform of General Term Alimony

   When I first started practicing family law in Massachusetts, it seemed as if alimony was becoming an endangered species: other than traditional-role, long-term marriages, you rarely saw it. This was because under Massachusetts law at the time, the Court could not order alimony for a definite period of time after a trial. The Court was only empowered to order alimony for an indefinite period of time, leaving it up to the parties and their attorneys to bring a subsequent Complaint for Modification once the reason for the alimony had ended, or the paying spouse became disabled, unemployed, under-employed, or had reached retirement age. The alimony statute in effect at that time, M.G.L. chapter 208, sec. 34, did not contemplate limited duration orders, or provide any guidance as to calculation of the amount, leaving everything in the judge's discretion after considering the enumerated factors, such as age, length of marriage, contribution, etc. Judges were reluctant to order alimony in relatively short-term or shorter-term marriages, as it could result in a lifetime obligation.
   Most alimony judgments were agreed-upon after negotiation. The parties were free to do what the Court could not, that is: agree to a limited duration of alimony, which provided a degree of security, and omitted the need to return to Court in the future, saving the parties time and attorneys fees. This eliminated the uncertainty of the future, and saved people from having to litigate issues such as whether their retirement was "in good faith". The parties that could agree did not have to spend untold thousands of dollars "rolling the dice"; the parties that could not agree ended up litigating alimony amounts, duration, whether a material change in circumstances has occurred, and whether alimony obligations should end at retirement. In some cases, the litigation and bringing of Modification Complaints went on for decades.
   In 2011, Massachusetts finally joined the majority of states in passing the Alimony Reform Act, and setting limited duration alimony based on the the length of marriage. Where there is a substantial difference in income, and no agreement to the contrary, the Court may order general alimony as follows:

a. Where the length of marriage is less than five (5) years, alimony may last for not longer than one-half the number of months of the marriage.

b. Where the length of marriage is ten (10) years or less, but more than five, alimony may last for not longer than sixty (60%) percent of the number of months of the marriage.

c.  A 10-15 year marriage is limited to seventy (70%) percent of the number of months married.

d.  A 15-20 year marriage is limited to eighty (80%) percent of the number of months married.  

e.  A marriage of longer than twenty (20) years allows the court to do what it always did in the past, and order an indefinite term of alimony. 

Unlike before, there is now a presumption that  alimony terminates upon the payor reaching full retirement age, and the ability to keep working after that age is not, by itself, grounds for continuing alimony.
   "Length of marriage" is calculated from the date of marriage until the date that one of the parties is served with a Divorce Complaint and Summons.  
    The new law also changed existing law by allowing alimony to be terminated if the recipient spouse is cohabitating with another person for three months or longer. The delineation of factors is contained in M.G.L. C.208, sec.49(d).
    Many issues continue to be litigated in interpreting this relatively new act, which will be discussed in later blogs on this topic. One case which came down in 2014, Holmes v. Holmes , 467 Mass. 653 (2014), holds that the clock doesn't start running on the duration of alimony payments until the final judgment of divorce enters, and does not include the period of time when temporary support was paid while the divorce proceedings were pending. This could easily add one or two more years of payments in cases which do not settle, and should be taken into account when negotiating settlement.
   In addition to the changes to General Term alimony outlined above, the 2011 Alimony Reform Act also created or codified several limited situation forms of alimony, as well as created standards for the calculation of alimony. I will deal with these issues in Part II.
   All legal advice is fact-specific, and you should never rely solely on an article you have read in making major life decisions. If you have any questions as to how this new law pertains to your personal situation, feel free to contact me directly, or through my web site at