Information for New Clients
Attorney Brian E. Barreira handles all new matters the same way. In his experience, sometimes clients know all of the important laws that impact them and their decisions, but often clients do not, so he does not get on the telephone with prospective clients and chat about issues in a piecemeal manner. Instead, an initial consultation is scheduled to discuss the client’s legal issue(s). A questionnaire is sent to the client to be completed and brought to the initial consultation, thereby allowing the attorney-client team to get right to work on making appropriate decisions. By the end of the initial consultation, which often runs 60-75 minutes, an overall plan is outlined, with Attorney Barreira’s usual recommendations focused on creating a simple, practical plan where you handle portions of your legal matters to help keep the overall costs down. The point of the initial consultation, which is billable, is for Attorney Barreira to review your personal situation and make recommendations, and the client can choose to have most or all of the work done elsewhere.
Where some lawyers may offer a free initial consultation, why should a prospective client feel comfortable paying for an initial consultation? We can answer that question with a question: do you really want your lawyer to be on commission? The lawyers who offer a free initial consultation are often gathering information that could have been accomplished by the usage of a questionnaire, and are unfortunately in the position of having to recommend something billable to recoup the unbilled time. Armed with your completed questionnaire, Attorney Barreira gets right to work offering practical advice at the initial consultation free of any financial bias. (For example, many of his clients have been told that, based on current Massachusetts law, they do not need a will because the law does exactly what they would want.)
Do you sell any financial products? No. Some lawyers incorporate commission-based annuity sales into their practices, or have a related business sell annuities for them, sometimes for no real reason other than to generate a commission. Attorney Barreira does not sell annuities (which often contain undisclosed commissions), and is available for a second opinion for prospective clients whose proposed plans from other sources may include annuities.
Who is involved in the initial consultation? In order to establish the attorney-client relationship, Attorney Barreira meets alone with the client to discuss the client’s wishes regarding health care and assets. The client is the person whose assets and health care are being discussed, except when there is proof that the person is mentally incapacitated. Meeting alone with the client is especially important because there is no attorney-client privilege during any time where anybody else attends the meeting, and also because there is no easy way for a lawyer to be able to defend whatever is decided upon and done against later claims of undue influences if other persons were involved in the planning discussions. (For an example of what can go wrong when the lawyer does not meet alone with the client, see Massachusetts Case of Contested Will of Alice R. Sharis Shows Why Estate Planning Attorneys Need to Meet Alone with Their Clients.)
What is typically discussed at an initial conference regarding estate planning for parents of minor children? Issues that are typically covered are (1) planning for your financial and health care decisions in the event of your incapacity, (2) who will be the Trustee in charge of making financial decisions for the minor child, (3) who will be the Guardian in charge of making personal and health care decisions for the minor child, (4) where might your minor child live if you die, and how will those expenses be paid, (5) whether avoiding probate is feasible, (6) whether all of your insurance coverages are sufficient, (7) how to have your retirement plans protected for the future of your minor child yet not be subjected to unnecessary early taxation, (8) how to handle large differences in age, financial need and abilities among children, (9) how to protect assets from creditors, and (10) how to eliminate, minimize or pay for the federal and Massachusetts estate taxes due nine months after death, especially considering that life insurance proceeds can be subject to estate tax.
What is typically discussed at an initial conference regarding estate planning for parents of adult children or blended families? Issues that are typically covered are (1) Planning for your financial and health care decisions in the event of incapacity, (2) how to minimize or pay for the federal and Massachusetts estate taxes due nine months after death, (3) whether all of your insurance coverages are sufficient, (4) whether you should look into applying for long term care insurance, (5) how to protect the surviving spouse while minimizing or eliminating the possibility that the children from the first spouse to die will be disinherited by the surviving spouse, (6) whether a postnuptial agreement or estate planning agreement should be executed, (7) how to handle large retirement plans or IRAs, (8) how large gifts are treated for gift tax and Medicaid or MassHealth purposes, and (9) how to protect assets from creditors.
What is typically discussed at an initial conference regarding MassHealth application and nursing home issues? We typically cover (1) how does the discharge process work at hospitals and rehabilitation centers, (2) when does Medicare or health insurance end and private pay or MassHealth begin, (3) when the right time to apply for MassHealth could be, (4) whether there are exceptions in the MassHealth or Medicaid laws that allow protective transfers of assets even at the last minute, (5) what to do if there have been disqualifying transfers or usage of funds that could be treated as disqualifying transfers, (6) whether some assets should be given to a pooled trust account for the nursing home resident’s long-term benefit, (7) what type of care to expect from the nursing home, and (8) what to do if the nursing home does not seem to be handling the care appropriately. For more information about the complexity of applying for MassHealth, see 32 Things You Should Know When Applying for MassHealth to Cover Nursing Home Care in Massachusetts.
What is typically discussed at an initial conference regarding your rights as a person inheriting from an estate or trust? We typically cover (1) the duties of the personal representative (formerly known as executor), (2) whether the appointed person is charge has a conflict-of-interest in serving, and (3) your rights to an inventory and annual accountings.
What is typically discussed at an initial conference regarding how to stay at home or in assisted living to avoid nursing home placement? Issues that are typically covered are (1) planning for who is in charge of making financial and health care decisions; (2) getting a qualified geriatric care manager to oversee the overall care plan, (3) whether governmental programs such as MassHealth, GAFC or VA Aid & Attendance can help pay for appropriate care, and (4) how family members can get paid for their services.
What is typically discussed at an initial conference regarding special needs trusts? Disabilities come in all shapes and sizes, so a special needs trust has to be established and administered to handle the particular disabilities of the beneficiary. Many people don’t know the difference between SSI and SSDI, or how governmental housing and health care programs work. Therefore, we discuss what governmental benefits are in the picture now, what governmental benefits could be needed later, and what rights MassHealth may have as a creditor of the disabled person’s estate; based on these issues, a determination can be made whether the trust should be drafted tightly or loosely, and who the Trustee should be.
What is typically discussed at an initial conference regarding someone else who is not handling their fiduciary role appropriately? Sometimes, the person in charge (guardian, conservator, trustee, health care agent, attorney-in-fact or agent under a durable power of attorney, or personal representative — formerly known as executor) is not doing the job correctly, and immediate action needs to be taken to prevent further harm from occurring. Other times, the person is charge is doing a good job but just not doing a good job communicating what is happening. Therefore, we discuss what is happening from your point of view, and determine whether you really need a great deal of legal representation.
What is typically discussed at an initial conference regarding whether a guardian or conservator is needed for an incapacitated or nearly-incapacitated person? The issues typically discussed are (1) what steps can be taken to minimize or eliminate the need for Probate Court proceedings, including locating joint accounts, powers of attorney and health care proxies, (2) what are the duties of a health care agent under a health care proxy or agent or attorney-in-fact under a durable power of attorney, (3) how the petitioning process works for Guardianship and Conservatorship, how long they take, and whether immediate authority is needed, (4) what types of medical attention is not allowed under a normal Guardianship, and what steps need to be taken to receive such authority, (5) how detailed the inventory, financial plan and accountings need to be for Conservatorship, and (6) how to handle the incapacitated person’s home, tangible personal property, finances and income tax issues.
What is typically discussed at an initial conference regarding persons who are somewhat competent but being taken advantage of financially? We typically discuss (1) whether a limited Conservatorship is a possible need, or whether a durable power of attorney or trust avoids most or all of the need, (2) whether a financial abuse report should be filed with the appropriate state agency, and (3) whether practical or legal steps need to be taken to retrieve assets.
What is typically discussed at an initial conference regarding business succession planning? Business succession planning is a part of the estate planning process, so it should not be dealt with in isolation. The issues typically discussed include (1) allocating business and non-business interests in your overall estate plan, (2) how to protect the interests of all beneficiaries with an effective buy-sell agreement, (3) consideration of how the buy-sell payments could and would be made, including whether life insurance or disability insurance should be purchased, and how long the purchaser should be given to finish purchasing your business interests.
What is typically discussed at an initial conference regarding your duties as the person in charge of estates or trusts of deceased persons? Issues typically covered are (1) What steps need to be taken for the Personal Representative (formerly known as Executor) of an estate or Trustee of a trust to be officially in charge, and once they in charge what are their fiduciary duties, (2) How should creditors of an estate be handled, (3) what rights does MassHealth have as a creditor of an estate or trust, (4) what type of information should be given to beneficiaries of an estate or trust to prevent friction from developing, (5) how to handle a disgruntled heir or obnoxious creditor, (6) what immediate steps should be taken to protect a decedent’s tangible personal property, (7) what details need to be included in an inventory or accounting of the Personal Representative or Trustee, (8) what steps are needed to gather assets, (9)how does the income taxation of an estate or trust differ greatly from personal income taxation, (10) when is an estate or trust subject to filing a federal or Massachusetts estate tax return, and (11) in cases where all of the beneficiaries of an estate or trust get along, what shortcuts can be taken to minimize court costs and legal fees.