Author Archives: Sally Wagley

About Sally Wagley

Attorney Sally M. Wagley focuses her practice on elder law, estate planning, probate and special needs trusts. She is a leader in the field of elder law, as an author, legislative advocate and teacher. For more on Sally’s education and experience,

Second marriages: giving your surviving spouse a life estate in your home

Posted on June 19, 2013

By Sally Wagley, Maine elder law and estate attorney

Consider the case of this typical client of ours, a man in his 60’s, married for the second time to a lovely woman, also in her 60’s. He has three grown children from his previous marriage and several grandchildren. She too has children and grandchildren of her own. Both have property, savings and investments of their own, which they wish to keep separate, and which they wish to leave directly to their own children rather than to each other.

When they marry, the wife moves into the husband’s home. The husband chooses to keep the home titled in his own name, rather than put his wife’s name on the deed, so that the home will ultimately go to his children when he dies. At the same time, he does not want his wife to have to move out of the home when he dies. He comes to us for advice.

One of the options we offer him is revising his will so as to provide his wife with a “life estate” in the home. The will we prepare for him states that should his wife survive him, she has the right to occupy the home for as long as she wants, provided she pays the expenses (taxes, insurance, utilities, maintenance) and takes care of the home. Should she choose to move out of the home, the property will then belong to his children, who can do with it as they choose. If she remains there until she dies, then upon her death the husband’s children will at that point receive title to the home.

In this way, the husband can ensure that his wife will not be uprooted while at the same time ensuring that his children will inherit the property when she no longer needs it.

Legal Issues Facing People in Second Marriages

Posted on June 13, 2013

By Sally Wagley, Maine elder law and estate attorney

In the next couple of weeks, we will be blogging on some of the legal issues facing older people who are in second marriages. As Maine elder law and estate planning attorneys, we have many clients in this situation. Many of them have children from previous marriages and want to balance the needs of those children with the needs of a surviving spouse.

Some of the legal vehicles for ensuring this balance are: prenuptial and postnuptial agreements; leaving the surviving spouse a life estate in the home; marital and family trusts; a special needs trust for a spouse who is likely to need expensive long term care.

We hope you will find this information useful and we will be glad to advise you if you are in a second marriage.

Special Needs Trusts Can Be Structured Several Ways

Posted on June 2, 2013

By Sally M. Wagley, Maine elder law attorney

A special needs trust can be a valuable tool in protecting the long term well-being of a loved one. Here are some common questions answered about various structures.

What is a “third party” special needs trust?
A third party special needs trust is for the client who wants to provide in his or her will for a disabled child or other relative. The client’s goal is to ensure that the disabled child or relative continues to be eligible for SSI, MaineCare and other public assistance programs while having funds available on the side to meet his or her special needs. The client has a Will which appoints a trustee to handle the disabled child’s or relative’s inheritance. Typically, the trust will say that if anything remains in the trust when the disabled child or relative dies, the balance will then be distributed to certain other family members. (A third party special needs trust is not required to have a “pay-back” provision to reimburse the government.)

What is a “first party” special needs trust?
A first party special needs trust is for the disabled client on public assistance who receives a sum of money; for example, from a personal injury or medical malpractice action, from an inheritance or from a divorce. If the client places the new funds in a “first party” special needs trust which meets certain strict requirements, the client will continue to be eligible for SSI, MaineCare and other public assistance programs. The requirements are: the person must be disabled according to the standards used by the Social Security Administration; the person must be under age 65; the trust must be irrevocable; it must be established by a parent, grandparent, guardian or court; it must state that any funds remaining in the trust at the disabled person’s death be used to pay back the government for what it spent on the person’s medical care. Anyone can be named trustee of a special needs trust of this type: a friend, family member, professional, bank, trust company or non-profit organization.

What is a “pooled” trust?

A pooled trust is a special needs trust administered by a non-profit organization for the benefit of a number of disabled people. The disabled person’s funds are placed in a “sub-account” with the organization. The organization acts as trustee for the disabled person, drawing on the person’s sub-account to make direct payments to providers for the person’s special needs. In Maine, there are two pooled trusts: the Maine Pooled Disability Trust and the Maine Trust for People with Disabilities. Under SSI and MaineCare rules, if a person age 65 or older wants to fund a special needs trust, he or she must use the pooled trust.

Average annual nursing home cost now $87,000 per year

Posted on January 11, 2012

By Sally M. Wagley, Maine elder law attorney

 The cost of paying privately for care in a nursing home rose 4.4% in 2011, nationwide, according to a survey done by MetLife.  The current cost of one year in a nursing home is, on average, $87,000.

The cost of care in a Maine nursing home is at least this much, if not more:  generally in the range of $7000 to $8000 per month.

 What might this mean for you and members of your family?  Consider the following:  

  • Do you have adequate income and savings to cover years in a nursing home? 
  • If you were in a nursing home and your spouse were at home, how much would your spouse need in order to remain comfortable?
  • Is it important to you to pass on something to the next generation?   How would you feel if your savings were completely used up on the cost of your care, before you die?
  • What if you had to sell your home or other property in order to pay for your nursing home care?
  • Are you aware that Medicare covers only short stays in a nursing home –only for skilled care and rehabilitation? 
  • Do you know what the Medicaid program (called “MaineCare” in Maine) covers in your state?
  • What is the quality of care at nursing home and assisted living facilities in your area?
  • Have you checked out long term care insurance, to see what it covers and what it would cost?
  • Have you met with a elder law attorney (also referred to as an “elder lawyer” or “elder care attorney”) to find out what coverage might be available to cover some of the cost of your care, and what you can do to get that coverage?  

Be aware that each state is different with respect to nursing homes, Medicaid and other programs. While there may be books on this subject at your local book store, those books won’t tell you the specific things you should know about Maine nursing homes and Maine elder care.  Also, beware of advice given by neighbors and friends.  Each person’s situation is different, and what may have helped someone else won’t necessarily help you.   

In my blogs, I will be addressing some of these issues in the coming weeks.

Leaving your “stuff” to people in your last will

Posted on January 6, 2012

By Sally M. Wagley, Maine estate planning and elder law attorney


A concern that older people often bring to estate planning and elder law attorneys is how they can make sure that, at their deaths, the right people receive treasured heirlooms and other items.  These items include jewelry, antiques, firearms, tools, musical instruments, art work, knick-knacks, and the like.  Lawyers refer to this “stuff” as “tangible personal property.”

It is not necessary to list things in the last will and testament prepared by your estate planning lawyer.  Instead, you can list these things in a separate writing, which your will refers to.  This separate writing can be in your own handwriting or typed.  What’s important is that it be signed by you and dated.

This list can be dated before or after the will prepared by your lawyer – it doesn’t matter.  You can change it time and time again, without going back to your estate planning lawyer to get your will changed.   The best place to keep this list is together with your will.

Some people, instead of preparing this list, go around their homes and put post-it notes on things, naming the person to receive each item.  This will work out fine as long as your family agrees about who gets what.  However, if they don’t agree, there is no way to make sure that these things will go to the right people.  This can cause problems within your family and could even require a judge of the Maine probate court to resolve the issue.   Therefore, it is best to put your wishes in writing.

Big changes in Maine and federal estate tax

Posted on December 29, 2011

by Sally M. Wagley, estate planning and elder law attorney

Everything in life changes – especially the law on estate tax.

Since I started practicing as an estate planning lawyer in Maine almost 14 years ago, estate tax laws have changed many times.   This last year, 2011, has been particularly eventful:

  •  The federal estate and gift tax exemption increased from $3.5 million to $5 million dollars (after a very brief period during which the federal estate tax was repealed altogether).
  • The Maine estate tax exemption will increase from $1 million to $2 million dollars, effective January 1, 2013.

If you are a Maine resident and have accumulated significant wealth, a simple will may not be enough. You may need an estate plan which aims to reduce or even eliminate estate tax, thus preserving what you’ve saved for the next generation or for charity.  Strategies  include:

  •  Trusts for the benefit of spouse, children, grandchildren or other family members;
  •  Gifts to charity, including gifts to charitable trusts;
  •  Bequests which skip a generation;
  •  Annual gifts of up to $13,000 per person to family members;
  •  Funding college savings plans for grandchildren.

Since the laws on estate tax change so often (and will continue to change), I like to incorporate flexibility into clients’ estate plans, enabling surviving family members to make decisions at the time of your death based on the law in effect at that time, based on the size of your estate and based on th e needs of surviving family members.   An example is a will which gives your surviving spouse the ability to “disclaim” his or her inheritance from you, directing assets to one or more tax-saving trusts, if it appears at that time to be beneficial.    This is just one of a number of approaches to formulating a tax-oriented estate plan.

The information provided here is for educational purposes only, and should not be construed as legal advice or an answer to a specific legal problem.

Sally M. Wagley practices in the areas of elder law,  estate planning and estate administration, with the firm of Levey and Wagley, P.A. in Winthrop, Maine, www.leveyandwagley.com.

Proposed cuts to prescription drug help for Maine’s elderly

Posted on December 19, 2011

By Sally M. Wagley, elder law attorney

As an attorney focusing on elder law, I am carefully watching the Maine Governor Paul LePage’s proposed cuts to MaineCare programs serving the elderly.   My last blog post was about the proposed elimination of coverage for residential care (also known as “assisted living” or “boarding home” care).

The Governor’s budget proposal also includes cuts to prescription drug assistance to Maine’s elderly.   According the Spectrum Generations, the proposed MaineCare cuts are as follows:

  • Prescription Drug and Health Care Assistance for People over 65 and People with Disabilities: Approximately 72,000 Maine elderly and people with disabilities would lose some or all assistance they currently receive to pay for Medicare and/or prescription drug costs. Of the 72,000, over 20,000 (with incomes between 135-185% FPL) will lose all assistance they currently receive through the Medicare Savings Program (MSP) to help pay for Medicare premiums, co-payments and deductibles, prescription drug costs, and coverage through the so-called “donut hole”. The remainder, approximately 52,000 people, will lose some assistance with Medicare and/or prescription drug costs.
  • Prescription Drug Assistance for Certain People over 62 and People with Disabilities: Approximately 5,000-6,000 low-income older adults (over age 62) and people with disabilities who do not have Medicare will lose all assistance they currently receive to afford their prescription medications through the Drugs for the Elderly program (DEL). These are individuals with serious health conditions such as diabetes, heart disease and Lou Gehrig’s Disease.

These MaineCare cuts, of course, must have legislative approval in order to go into effect.  Hearings are being held at the State House right now.  More details will be coming.

Governor proposes: no more MaineCare for assisted living and residential care

Posted on December 11, 2011

by Sally M. Wagley

This week Maine’s governor released his proposal for cuts to the MaineCare (Medicaid) program.   A number of the proposed cuts will affect Maine’s elderly.

An area of particular concern is the elimination of MaineCare coverage of expenses faced by elderly and disabled people who live in residential care and assisted living facilities.   As an elder law attorney, I have many clients in these facilities who cannot afford to pay the monthly cost of $4000 to $7000, who are on MaineCare or will need to apply for it soon.  I also have many clients who are stressed out caregivers who cared for an elderly relative for as long as possible, before reaching the point of exhaustion.

Assisted living and residential care facilities are for elderly people, many of them with Alzheimer’s and other forms of dementia, who need supervision around the clock. In these settings, they are provided with security, reminded when to eat, dress and bathe, are helped with medication, and provided assistance with some activities of daily living.

Where will these people go if they can’t get MaineCare and can’t afford to pay privately?  Most will not meet the criteria for nursing home level of care.  So they will have to return to live with exhausted spouses and other relatives, many of them also elderly and with health problems).   For those without families or homes to go to, or whose families simply cannot take them back, the outcome is not clear.

The governor’s proposal is at this point just that — a proposal, which will need legislative approval before it becomes a reality.  Regardless of whether you agree with the governor, it is important to be aware that this change may be coming.

Becoming the guardian of a disabled child turning 18

Posted on October 14, 2011

By Sally M. Wagley, Maine elder law attorney

For most children, age 18 is regarded as a significant milestone, another marker on the road to independence. However, when a child has a mental or emotional disability, he or she may continue to be dependent on parents for decisions about living arrangements, health care, social services and finances. Once a child in Maine turns 18, a parent no longer has legal authority to make the child’s decisions. Health care providers may deny the parent access to the child’s medical information, and financial institutions may deny the parent access to the child’s money. In my role as a “special needs” lawyer, I help families in this time of transition.

Some children with disabilities may have the capacity and understanding to delegate authority to a parent under a durable financial power of attorney or health care directive. This is a simple document which can be executed in a lawyer’s office, with a minimum of time and expense. Other children, however, may be so disabled that they are unable to understand and to sign such a document. In this situation, the parent should seek to be appointed as the child’s guardian (and perhaps conservator as well, as discussed below).

Maine’s county probate courts are the courts which handle guardianship matters. These are the steps to obtaining guardianship of an adult disabled child in Maine:

1. Petition for appointment of guardian: The parent files a petition and related forms asking the court to appoint the parent as the child’s guardian and files the papers with the court.

2. Physician’s/psychologist’s report: A professional (such as the child’s physician) fills out a court form stating that the child needs a guardian.

3. Appointment of visitor: The court appoints a visitor to meet with the child and parents and report back to the court as to whether a guardianship is appropriate.

4. Hearing: A hearing is scheduled. Important people in the child’s life receive notice of the hearing. In many of Maine’s 16 probate courts, the hearing is fairly relaxed. The judge may ask a few questions and may make sure that the guardian understands his or her responsibilities. If it is clear to the judge that the appointment of a guardian is in the child’s best interest, the judge will immediately issue an order appointing the parent as the child’s guardian.

5. Conservatorship: If the child has money or other assets in excess of $5000, the parent may also need to seek appointment as the child’s conservator in order to be able to handle the child’s funds. This request should be made to the court at the same time as guardianship is requested.

The Maine probate courts try to make it as simple as possible for parents in this situation to become their child’s guardian. However, to the uninitiated, the process may be daunting. As attorneys with expertise in helping families with disabled children, we can help you either by representing you in the guardianship matter (appearing with you in court), or we can simply assist you with the paperwork, so that you can represent yourself. If you would like our help, please contact us for an appointment, law@leveyandwagley.com.

Using a trust or LLC to keep your vacation home in the family

Posted on February 8, 2011

Here in Maine (“Vacationland”), one of our favorite activities is going “up to camp.”  People treasure their waterfront property and hope that it will remain in the family for generations.   While it is impossible to control the future from your grave, you can increase the chances of the property staying in the family by placing the property in a trust or a limited liability company (LLC). Such an arrangement typically provides:


  • Who will make decisions about the property. If you use a trust, the decision maker(s) will be called “trustees” if you use a trust.  You might appoint one of your children as trustees, or perhaps all of them, to act as a group.
  • The arrangement will state how decisions are to be made about the property: Will one person make decisions unilaterally?  Or will decisions be made by a group, by majority vote?
  • Who will pay property taxes, insurance, utilities and maintenance?  Will it be shared by all members of the family who get to use it?  What if one person can’t afford these expenses?
  • How will a schedule be arrived at, enabling different family members to use the property?
  • What if one of the beneficiaries isn’t using the property much and wants out of the arrangement?  Will other beneficiaries be required to buy him or her out? If so, how will they decide on a price?
  • What happens if a beneficiary dies?  Does that beneficiary’s share go to the other beneficiaries?  Or does it go to the deceased beneficiary’s children?

Families are often tempted to develop such an arrangement informally.  However, this type of arrangement is complex, requiring the consideration of many possible scenarios as well as tax considerations.  Therefore, it is essential to consult an attorney before deciding to go in this direction.  

 

Sally M. Wagley assists older and disabled people and their families in the areas of elder law,  estate planning and estate administration with the firm of Levey and Wagley, P.A. in Winthrop, Maine. Go to www.leveyandwagley.com.