But often, there is not even an opportunity to read what you are agreeing to.   At one bank I visited recently, the customer was asked to sign an electronic pad which simply said "I agree that my signature will be affixed to certain forms in the bank's records."  This amounted to signing a "blank check" so far as the customer's rights were concerned.

Even if you have the written word in front of you, if it consists of more words than you could possibly  read in the time you have, the effect is the same.  Essentially, you are relying on the word of the person who is asking you to sign. 

What to do?  Well, you may need to decide, what's at stake here?   In some situations, you may decide there is enough at stake that you need to take the time to read the document before signing it. Sometimes, reading the document does not tell you enough.  You may need to consult an industry expert, or even a lawyer.

Can you be bound by words you didn't read?  Yes, you can.  Does that mean you have to read all the fine print, whenever anyone asks you to sign anything?  No.  The choice is yours.  You can read it, or not.  You sign at your own risk.  

I am a lawyer by trade, but even I sometimes sign things without reading every word.  Sometimes I decide that there is unlikely to be anything unusual in the document, and I want the good or service that will be provided if I sign.  I know I have a choice, and I sometimes choose to sign, believing that reading the document will not lead me to choose otherwise.  What do you do when someone says "sign here?"

But there is an asset test as well.  A single person will not qualify if they have more than $2,000 in assets.  There is a larger exemption for married couples, but still, this creates a problem.  What happens when one spouse dies?

One often-overlooked strategy for dealing with this problem is the testamentary trust.  According to the federal rules that ultimately govern Medicaid, a trust set up by a spouse in the spouse's will cannot be treated as totally available for Medicaid.  The trust's own provisions have to be respected.

So you could create a trust for your spouse and provide in it that your trustee can provide anything your spouse needs except what Medicaid would provide.  This type of trust, called a "supplemental needs" trust, will ordinarily only work for Medicaid if it is set up by a non-spouse.  You can set a special needs trust up for your child without using your will.  But it only works for a spouse if a will is used.

This arrangement is particularly recommended when one spouse is already in a nursing home.  If the other spouse dies, the spouse in the nursing home wil automatically become ineligible.  The spouse in the community can avoid this by executing a will with a testamentary trust provision.  

But even if neither spouse needs a nursing home yet, the use of testamentary trusts can still protect substantial assets.  The testamentary trust can provide that whatever is not used for the care of the surviving spouse can then be distributed to the children.

My special wrinkle on this is to use the will to exercise a power of appointment built into your revocable trust.  The power is only exercised if your spouse survives.  If your spouse survives you, the assets in your revocable trust are transfered into a testamentary trust, where they are protected from being spent down for nursing care.  If your spouse does not survive (that is, if you die first), the power is not exercised, and the assets can be just distributed out of the revocable trust in the normal way.

Settlement should be done at the time, when people still remember things, before the house has been cleaned out, before the mail stops coming.  It is part of the grieving process, like memorializing the person's life.  

Although I have written disapprovingly of digital estate planning, digital settlement should be done.  By that I mean, that companies with whom the person has done business should be notified.  A final bill should be requested and paid.  If the person had a facebook page, Facebook should be notified, so that the page can be shut down or placed into memorial mode.

Settlement is especially crucial for a widow or widower.  There can be serious tax and other consequences from failing to reorganize the dead spouse's trust.  Sometimes this means the widow or widower risks losing the power to make important choices if they wait too long to settle.  The survivor should also reorganize his or her own documents.  The dear departed should not be listed as a trustee or on a power of attorney or health care proxy.  This is part of putting together a life without the departed spouse.  It is part of grief.  It is often hard.  There is a lot to do, and one is continually reminded of what has happened.  Appropriate professional help can make the process easier, though.

My article on the thoroughly-modern topic of "Digital Estate Planning" was published in the Metrowest Daily News for today, Sunday, December 2, 2012.  

In the article, I suggest that you consider appointing a co-trustee to serve during your life time.  Most (although not all) of my married clients already have a spouse as co-trustee.

If you are a current client (in planning or in the Annual Maintenance Plan)  and you are a sole trustee of your trust, you might want to consider adding a co-trustee.  To do that, you should call the office and ask for an appointment telephone call to discuss the pros and cons for you of doing that.  We will restate your trust to include the additional trustee at no charge.

If you are a previous client who elected not to be on the annual maintenance plan, a trust retatement will require a new agreement, and at least two in-person meetings, for a total charge of $600.  You will then be eligible for the Annual Maintenance Plan, if you wish it.

The bottom line is that there is no such thing as "Digital Estate Planning."  You either plan your estate or you don't.  If you are thinking of giving someone else your passwords, or writing them down for your heirs to use, think again.  That is not estate planning, it is estate non-planning, and that is asking for trouble.

So, here we go:

Suppose you are living the American Dream:  you own a house; and you have saved enough for a comfortable retirement.  You have children and your children have children.  Then a bad thing happens: you have a heart attack, and die suddenly.  Your children are the beneficiaries of your will.  They and their children will benefit from your hard work and careful saving.  Your grandchildren will be able to attend better schools.  That is as it should be; part of the American Dream is being able to leave your children better off than you were.

Now, let’s consider another scenario - instead of dying from that heart attack, you recover and go on to live a long time.  The accumulation of the ills of old age make life harder and harder for you.  Your bones become more fragile, your memory more fickle.  You come to need help just to get out of bed, dress, even eat.  Your children, much as they love you, have their own lives to lead.  They cannot give you the full time nursing care you need.  Reluctantly, you and your family decide you must go into a nursing home.

Up until this point in your retirement, your medical care was provided by Medicare, a federal program that provides health insurance to people over the age of 65.  Medicare will pay for nursing home care, but only if you enter the nursing home from a hospital and only for a short period of time.  If you need long-term care in a nursing home, you must pay for it on your own.

There is a safety net.  Called “Medicaid,” it is a federal program, administered by the states.  In Massachusetts, it is administered by the Division of Medical Assistance, under the name "Masshealth." 

MedicAid is not insurance.  Insurance pays if something happens that you insured against.  If your house burns down, your insurance company can’t get out of paying by claiming that you have plenty of money, you don’t need the benefit.  You paid for the insurance; the hazard you insured against happened; therefore, the insurance company has to pay.  Health insurance works the same way.  It doesn’t matter whether you can afford to pay for care or not.  If you need medical care, and you have medical insurance, the insurer has to pay.   

MediCare, unlike MedicAid, is health insurance.  All working people pay for it, along with Social Security, through payroll deductions.  It is insurance that we are required to pay for.  Fire insurance on your house (if you have a mortgage), car insurance, and, now in Massachusetts, health insurance, are all required.  But we are not required to pay for long-term care insurance.

Instead, most of us will rely upon MedicAid if we ever come to need long-term nursing home care.  Unlike Medicare, MediAid is not insurance; it is welfare.  It only pays the bills of the needy.  What does it mean to be needy?  Long-term care can run close to $100,000 a year.  If your investments, retirement, and social security, combined, yield that kind of income, you obviously don’t need Medicaid. 

But what if you have income of “only” $50,000 a year?  Will Medicaid pay the difference?  It will not.  Medicaid will pay nothing until you have spent your assets.  A single person is allowed to keep $2000.  You don’t have to sell your house until it becomes really clear that you are not coming back to it.  But, when that happens, the house must be sold and the money used for nursing care.  If you die still owning it, the house must be sold and the proceeds used to reimburse the state for the money that has been spent to care for you.  There may be nothing left for your children or your grandchildren.   

To many, this seems an unfair result. If you can afford to pay for nursing home care out of your income, you can pass on all your assets to your children.  If you are not wealthy enough to pay a nursing home out of your income, you must liquidate your assets in order to pay.  So the children of the rich stand to inherit more of their parents’ assets then the children of the middle class or the poor.  This is a mechanism for increasing the gap between the rich and the rest of us. 

The truly poor have nothing to worry about.  They are taken care of, as they should be, by this system.  But, if you have something put away, whether or not you can leave the benefits of your hard work and careful saving to your family depends on how you die.  If you die suddenly, your family benefits.  If you stay alive for a long time, you will have to spend your children’s inheritance.

A decision has been made in this country, that nursing home care, unlike most other kinds of medical care, should be a “pay as you go” proposition.  We have decided not to require people to insure against it.  At the same time, we have decided that we cannot let helpless elders be thrown into the street because they cannot pay for care.  These decisions have had some odd results.

One of these odd results is a niche market for lawyers.  By placing your savings and your house in an irrevocable trust, you can avoid having the property in your own name when you die.  Because the state can only recover the cost of your care from the property that was in your own name when you died, you can use a trust to pass assets on to your children.  There is one catch, however:  the state will refuse to pay for the period of time that the property in the trust would have served to pay for your care if it had been available.  However, if you manage to stay out of the nursing home for five years after setting up the trust, the transfer to the trust will be ignored, regardless of the property’s value.  The use of such a trust is perfectly legitimate.  However, setting one up does require forethought and cost money.  So, among the “not-so-rich,” people who plan ahead, by insuring against the need for long-term care or by taking legal steps to protect their property, will leave their families better off. 

But what about someone who is struck by unforeseeable illness or accident and has had no time to plan?  What about someone who owns a house but has low income, who feels that they cannot afford either insurance or legal fees? What about those who are too proud to plan to take advantage of a form of welfare, and choose to simply hope that they will die quickly?

The reason that Medicare does not cover long-term care insurance is that it was thought to be too expensive.  However, the question is not, should we have long-term care.   Some people need to be cared for long term.  The question is, who should pay?  Should individuals and their families have to pay?  As things now stand, the cost of long-term care falls heavily on a certain group of people: those who have worked hard and saved carefully all their working lives and who live a long time.  These people, the virtuous elders, don't deserve to be "living the American Nightmare."

The Metrowest Daily News has published my article, "Sticky Note Estate Planning"  Its about how, by "funding" as we call it, your trust, your family can avoid having to go through a court process called "probate" in order to transfer your assets.   To read the full article, click here

For this process to work, you have write a good, clear, "sticky note."  As you may know, trusts usually run to more words than can be fit on one of those!  Also, the nature of sticky notes is that they can come "unstuck."  That's what so special about them, actually.  The "sticky" is very weak.  If you want to make your directions stick really strongly, we recommend legal "superglue" - actually changing the legal title of your property to the name of your trust.

This makes some people nervous.  They feel that they will be losing control of their property.  Not to worry.  The trust itself says what control you retain over the property.   We recommend that at least your checking account, car and personal property should be "stuck to" your Life Trust, which says that, during your life, while you are well and able to make decisions, you have complete control.