Under Massachusetts law, is leaving my estate to my sister in trust to be used to care for my aging mother a good idea? If I create such a trust for my mother's care, and she goes into a nursing home, can the nursing home attach what has been in left in trust for her? Would it be easier to just leave it to my sister straight out and leave my mother's name out of everything? I trust my sister, and have no reservations about doing this if it will protect the assets from going to the nursing facility.
-- (Posted by Jane on the Forum)

(The following response was posted by Attorney Jennifer Deland of Holliston.) You are apparently concerned to provide for your mother, but you want to be sure that Medicaid (called Masshealth in Massachusetts) will be available to pay the nursing home fees. Masshealth looks to ownership and control in determining if assets are available to pay for a nursing home. If the money in the trust originally belonged to you and not your mother, and if your mother is not a trustee of the trust, and (this is important) is not able to obtain assets by right or on demand, she would not be considered to own or control the trust. The Trustee could be empowered to provide her with things Medicaid might not: dental care, a TV, perhaps a telephone. It would do the things that you would do, if you were there.

What about leaving the property outright to your sister? You obviously assume that your sister would outlive you. What if she didn't? What if she did, but then was sued by someone, went bankrupt, or got divorced? Your property could wind up benefiting someone else, and leaving your sister perhaps in no position to help. By placing your property in trust, you can protect it from things that might happen in your sister's life, and ensure that it would continue to be available for your mother.