Author Archives: Tom Packer

Community Spouse Resource Allowance

Don’t impoverish your spouse if you go on Medicaid.

While meeting with a client, I learned that his father had recently gone into a long-term care facility, that his mother was still in their home and that he was spending down their money so that his father could qualify for Medicaid. I explained to my client that federal law allowed his mother to retain a large amount of their assets and that his Mom didn’t have to become impoverished for his dad to qualify for Medicaid.

Let’s review the Medicaid rules as it applies to this case. In addition to filing the Medicaid application, the husband should file a Community Spouse Resource Allowance, which allows his wife to retain certain assets.

Medicaid categorizes resources as exempt assets and countable assets. Exempt assets include the following:

Primary residence
Personal household goods
One vehicle
Prepaid funeral
IRAs
Some specific Life Insurance Policies

Countable assets include:

Cash
Savings and checking accounts
Cash value of insurance policies

In this example, in addition to the exempt assets, the wife can retain one-half of the countable assets up to $119,220. For example, if the couple has $238,440, the wife can retain one-half, which is $119,220.

To be eligible for Medicaid, the husband cannot have more the $2,000. If he has more than $2,000, he cannot give money away (except to a disabled child); however, he can use the money to pay off their debts, make repairs to their home, upgrade their car, prepay their funerals, pay legal expenses and pay for his care.

Once the husband becomes eligible for Medicaid, he will sign a Marriage Settlement Agreement and transfer all of his assets to his wife.

One final point, now that all the assets belong to the wife, if by chance she dies before the husband, all of the wife’s assets will go back to him making him ineligible for Medicaid. To avoid this, the wife, should make a Will that includes a Special Needs’ Trust for her husband. Then if the wife dies before the husband, the assets do not go to him, but are held in a trust to be used for his benefit. In this way he remains eligible for Medicaid.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

Living Trust Myths

Living Trusts are a Growing Area of Consumer Fraud.

The Idaho State Bar has put out a publication about Living Trusts that is very informative, called “Do You Really Need a Living Trust?” This Senior Tip comes from that publication.

It states that every year Idahoans lose thousands of dollars through the purchase of unnecessary trusts. Often families face greater costs dealing with problems caused by the trusts. There are some situations when a living trust is appropriate, but often people could achieve their purposes by far less expensive means.

Following are some myths and misleading statements about Living Trusts:

Your estate can be destroyed by the death tax: This is misleading because in 2016, the federal estate tax only affects estates of more than 5.43 million in value.
Living Trusts save taxes: A revocable living trust saves no more estate taxes than a properly drafted will.
Living Trusts help you avoid contested wills: Living Trusts are contested on the same grounds that wills are contested.
Living Trusts help you avoid creditors: During your lifetime andafter your death, your assets are subject to the claims of creditors.
Assets in a Living Trust don’t count for Medicaid Eligibility: Only assets in certain irrevocable trusts may be excluded in determining Medicaid eligibility 60 months (5 years) after the assets are transferred to the trust. Having your home in a revocable trust makes a Medicaid application more problematic.
Living Trusts avoid the expense of a Conservatorship: It can only avoid the cost in some circumstances.
Attorneys charge from 3% to 10% or more to probate your estate: Attorney’s fees will be an agreed upon amount, usually based on an hourly charge.
Probate takes years to complete: In Idaho, in most cases the administration of a living trust is no more expeditious than the administration of a will in probate.
Probate requires court hearings: Idaho provides a simplified probate process, which involves no court hearing and may not require the filing of an inventory.
Everyone should have a Living Trust: The costs of creating and maintaining living trusts outweigh the benefits for many Idahoans.

If your goal is to avoid probate, there are several other ways to do so besides having a trust: Pay on Death (POD) accounts, Transfer on Death (TOD) designations of securities and joint tenancy on real property are inexpensive ways of avoiding probate.

If you are considering a Revocable Living trust, you should consult an attorney who is not promoting and selling Living Trusts when making your decision.

Community Spouse Deed

Ease the burden on your spouse.

Frequently when I meet with individuals to do their estate planning, I discover their spouse has passed away and the title to their house is still in both of their names. With the title in both of their names, the surviving spouse cannot sell, deed, or take out a loan against the house. To remedy this problem, I will file for Probate, Summary Administration or record an Affidavit of Heirship to get the deceased spouse’s name off of the title.

In 2008, the Idaho Legislature added Idaho Code § 15-6-401 to Idaho’s Uniform Probate Code. This Section states that “any estate in real property held by a husband and wife as community property with right of survivorships shall upon the death of one spouse, transfer and belong to the surviving spouse.” To accomplish this, a couple must record a deed with the county recorder that expressly states that the real property is being transferred to them to be held as community property with a right of survivorship. By doing this, all the surviving spouse has to do is record a death certificate to transfer the title into his or her name.

For couples with modest estates—a home, car and bank account—with proper planning there is no need for them to go through probate when one of them passes away.

Safe Senior Driving

Older Drivers, when is the right time to hang up the keys?

When we were teenagers, getting a driver’s license was the beginning of our independence. It is no wonder that we as older adults resist any suggestion to give up our driver’s license and discontinue driving. We feel the loss of independence to come and go as we please. Unfortunately, physical and mental issues may interfere with an older adults’ ability to drive. (Elder Law Essential 22-1)

There are many warning signs that an older adult should stop driving. Among them are the following: failing to yield, mistaking the gas pedal for the brake, hitting curbs, scrapes and dents on their car, difficulty maintaining lane position and delayed responses. (We Need To Talk…Family Conversations with Older Drivers, The Hartford)

Earlier in my legal career, I represented a number of older adults who had been involved in fatal car crashes. Because they were at fault in causing the accident, they were charged with vehicular manslaughter. Two seniors I represented had failed to yield and turned in front of an oncoming vehicle. In both cases, the driver of the oncoming vehicle was killed. Another senior was looking for an address and drifted out of his lane. The driver of a motorcycle in the other lane hit my client’s car, lost control of his motorcycle and was killed.

Under Idaho Code §18-4006, vehicular manslaughter is the killing of a human being in which the operation of a motor vehicle was a significant cause, without gross negligence. The maximum punishment for vehicular manslaughter is a fine of up to $2,000.00 and a jail sentence of up to 1 year. In addition, the court can suspend the driver’s license of the older adult. The maximum penalty usually is not imposed by the court in these cases; however, the bigger penalty may be the knowledge that your mistake resulted in the death of another individual.

Idaho Code § 49-326 (1)(c)(1) allows the Department of Transportation to revoke or restrict any person’s license upon the statement of the person’s personal physician that the person has a mental or physical disability, which prevents him from safely driving a motor vehicle.

A helpful and informative booklet has been put out by The Hartford, entitled, “We Need To Talk. Family Conversations with Older Drivers.” You can Google the title and get the internet version of the booklet. It aids in the discussion with older adults, who need to make decisions about safe driving. If you have a concern, please have a conversation as a family, for everyone’s safety.

What is an Elder Care Coordinator?

An Elder Care Coordinator is a professional, such as a social worker, who specializes in assisting Seniors to attain the highest quality of life, given their circumstances.

An Elder Care Coordinator knows about community resources and can help families understand how long-term care services for their loved ones are accessed and funded. He or she also helps the people who work with Seniors work together as a team, avoiding costly re-hospitalizations or fragmented care.

An Elder Care Coordinator will:

Provide support, counseling and advocacy during a crisis.
Help clients and families identify care problems and assist in solving them.
Assist families in arranging in-home help or other services.
Coordinate treatment plan with different health providers.
Provide education, and offer referrals to other geriatric specialists to provide appropriate care, while conserving financial resources.
Help with transitioning of a Senior to or from a retirement complex, assisted-care living facility, or nursing home.
Understand client’s personal needs and help in a way that improves their quality of life.

In a recent newspaper article, Sean Cavanaugh, deputy administrator at the Center for Medicare was quoted as saying, “We all need care coordination. Medicare patients need it more than ever.” The article continued stating, “About two-thirds of Medicare beneficiaries have two or more chronic conditions . . . Their care is infamously fragmented.” (Washington Post, AP) The following example illustrates this:

Recently, one of our clients was receiving care from multiple doctors. When an emergency room physician treated this client following an accident, his discharge orders made it back to the attending caregiver at the facility, but were not properly incorporated into the client’s treatment plan. This left our client vulnerable in several ways. She became unresponsive due to the increase in pain medications. She also had other critical components of her health that went untreated due to a lack of follow through with the discharge orders. Our care coordinator recognized that something was wrong, resulting in a return to the emergency room.

Here is what one family member said about the benefits her family received by having a care coordinator for their sister: “Words cannot express my feelings of gratitude for the wonderful care my sister has received and the peace of mind we as her family have felt.”

A new trend is for Elder Law Attorneys to hire Care Coordinators to help meet the needs of their clients. This can make all the difference in making sure our loved ones receive the best care. As families begin their journey through the long-term care system, it is helpful for them to have a supportive and knowledgeable advocate to accompany them along the way.

Exceptional Healthcare Providers

Being positive is conducive to healing.

Recently, I got a close-up look at how patients are treated by healthcare providers. While in the hospital for several days following a surgery, I reflected on how I was treated by my care team, and the impact it had on my experience. This helped me to better understand the importance of choosing the right healthcare providers for Seniors with chronic health problems, whether in their homes or in a facility.

Fortunately, all the healthcare providers I encountered aided me in the healing process and in overcoming the effects of my surgery. However, some more than others, provided needed assurance and optimism and treated me like a person, not just a name on the chart.

As care providers entered my room, there was an immediate sense of those who took a personal interest; invariably, they would address me by my name and ask a few personal questions to get to know me. Some would share a little about themselves, such as how long they had worked there or interesting things about their family, creating a warm atmosphere. When they were optimistic, it was a welcome attitude, when worries about things turning out well, were in doubt. Being positive is so conducive to healing!

So, now back to my earlier statement about the importance of healthcare providers in the lives of Seniors. Having the right care provider that fits the needs and personality of a Senior is so important. A care provider, whether he or she is a CNA, nurse, therapist or doctor, can brighten an often bleak situation by being personable, by noticing improvements and by using sincere encouragement.

When I was in a tough situation, I had a speech therapist that was like a personal trainer. She illustrated the needed exercise, cheerfully encouraged me and showed me how to achieve results. Having an exceptional care provider made all the difference!

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

Family Caregivers

Make sure your own needs are met as well as your loved ones.

As family caregivers, often our primary focus is on doing everything we can to help our loved ones remain as happy, healthy, and comfortable as possible. However, we often do this at the expense of our own well-being. We become so overwhelmed by our multiple tasks and roles that our ability to cope and care for ourselves becomes diminished. The negative effects of this increased level of stress can include:

sleep deprivation
poor eating habits
failure to exercise
failure to stay in bed when ill, and
postponement of or failure to make medical appointments.

We’ve all heard of the rule on an airplane: If the oxygen mask drops down in front of you, you should put yours on first and then help others with their oxygen masks. What is the reason for this? It is because we are better able to help others when we first take care of ourselves. This remains true in the context of care-giving. We are better able to help our loved ones, when we first make sure that we are caring for ourselves. The Family-Caregiver Alliance has provided a list of tips for self-care for caregivers. These tips include:

Learning stress reduction techniques, including: knowing the warning signs, identifying the sources, identifying what you can and cannot change, and taking action.
Attend to your own healthcare needs.
Get proper rest and nutrition.
Exercise regularly.
Take time off without feeling guilty.
Participate in pleasant, nurturing activities.
Seek and accept the support of others.
Seek supportive counseling when you need it, or talk to a trusted counselor or friend.
Identify and acknowledge your feelings.
Change the negative way you may view some situations.
Set personal goals.

Remember, it’s not selfish to make sure that your own needs are being met. Your health and well-being are just as important as the health and well-being of your loved one.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

National Alzheimer’s Disease Awareness Month

Using the 6 R’s to help a loved one with Alzheimer’s.

This month is National Alzheimer’s Disease Awareness Month. As a result, I thought it might be appropriate to discuss a situation that many of us caring for a family member with Alzheimer’s might encounter. We know that there will be difficult days for our loved one, and many of us may become overwhelmed when we don’t understand how to work through behaviors that are problematic for our loved one, ourselves, and others. In the book called, “The 36-Hour Day,” the Johns Hopkins University Press discusses the six R’s of behavior management, which may prove helpful when difficult situations present themselves.

Restrict. Use this R sparingly and with a lot of care. Often times when we try to force our loved one with Alzheimer’s to stop a behavior, it will actually upset him or her more. If the behavior is dangerous and could cause harm to our loved one or others, then restriction of that behavior becomes necessary. If the behavior does not pose a significant threat, however, instead try to redirect your loved one to a more positive behavior as opposed to immediately restricting the behavior.
Reassess. Mentally step back from the situation for a minute and really think about what might be causing this problematic behavior. Is there something in his or her environment that is causing annoyance or unrest, and can that factor be removed? Is there something physically wrong with your loved one that might be causing this behavior? Try to think of every possible reason for why this behavior is happening.
Reconsider. It is important to think about the situation from our loved ones’ point of view. This is as much a transition into the unknown for them as it is for us. Think about how their stress and anxiety may go up in certain situations, and try to understand why that might be the case. Empathy toward our loved ones can go a long way.
Re-channel. This is where that redirection that we talked about earlier really comes into play. Look for a way to change the problematic behavior into one that is safer and non-destructive. Find a hobby of your loved one that he or she is still able to complete. This can help change a problematic situation into a more positive one.
Reassure. In these strained situations it is important to make sure that our loved ones still know that we care. Reassure him or her that everything is alright and that you are still there and care. Give your loved one a hug or some other gesture that may provide reassurance. Even if your loved one doesn’t remember these reassurances, he or she may still retain the positive feelings from it.
Review. After the situation is over, take time to think through what happened. Did you handle the situation well and what would you do differently next time? Think about what things led to the behavior in the first place and how those things may better be prevented. This process may help you to better and more easily handle these situations in the future.

Source: http://www.nursevirginiablog.com/2011/01/the-six-r%E2%80%99s-of-behavior-management/

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

Dispelling Medicaid Myths

Correct information helps avoid mistakes.

We have found that there is a lot of misinformation about social welfare programs, their recipients, and what it costs to participate in the programs. The following are some myths about Medicaid for the Aged, Blind and Disabled and facts to consider:

Myth: Medicaid is a handout or a free ride. Once someone is eligible for Medicaid, the government pays for everything for the participant.

Fact: When a person is deemed eligible for Medicaid, they are required to share in the cost of their medical care. Depending on income level, some participants could pay as much as $2,100.00 per month to participate in the Medicaid program – hardly a free ride. Why would someone pay such a hefty sum to be on Medicaid? The cost of care without Medicaid would be considerably higher and leave them unable to pay for necessary medical care.

Myth: People on welfare programs, like Medicaid, are free loaders who are working the system.

Fact: People on Medicaid for the Aged, Blind and Disabled are retired school teachers who were once sharp as a tack, but have succumbed to the mind devastating effects of Alzheimer’s. They are farmers who once made a living off the sweat of their brow, who are now enfeebled by Parkinson’s disease. They are Veterans of our wars who once loaded torpedoes onto gunships in the South Pacific who are now themselves loaded from a gurney into an ambulance.

Myth: Once you are on Medicaid, the government takes over all of your money.

Fact: Medicaid participants remain in direct control of their income. Continued eligibility in the program requires the participant to make the aforementioned “share of cost” payment.

Myth: If your spouse needs to go on Medicaid, you have to spend down all your money in order for him or her to qualify.

Fact: The community spouse can retain the following property even if his or her spouse goes into a facility and receives Medicaid:

The parties home and adjacent land
One vehicle
Prepaid burial plans
½ of the parties’ funds in bank accounts and cash value in insurance policies up to $117,240.00

In conclusion, the best way to avoid costly mistakes in qualifying for Medicaid is to have the correct information, which can be provided by an elder law attorney.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.

Advance Directives

Take control of your healthcare by expressing your desires in written documents.

By completing Healthcare Directives in advance and expressing what kind of medical treatment and healthcare you want to receive if you are unable to communicate, you take control of this important part of your life. The Idaho Medical Consent and Natural Death Act, “The Act,” endorses two documents for this purpose: a Living Will / Durable Power of Attorney for Health Care and a Physician’s Order for Scope of Treatment. These documents have far reaching implications, so you should understand how they work and when they go into effect.

A Living Will takes effect when

you are unable to communicate, and
you have an irreversible injury, disease or illness, and
a medical doctor has certified all of these:
- your condition is terminal
- life-sustaining procedures would only artificially prolong your life
- your death is imminent
Or you have been diagnosed as being in a persistent vegetative state.

A Living Will only goes into effect under the above limited circumstances, but what about other times in your life when you need medical treatment and you cannot communicate your desires? The Act provides that if you are unable to consent to medical treatment, a surrogate-decision maker may make the decision for you. Individuals that can act for you, in the order of their priority, are: a court-appointed guardian or the person named as your Durable Power of Attorney for Health Care. If no one has been designated, a spouse or other family member may make decisions for you. This can lead to a conflict between family members who have differing opinions on the medical treatment or care that you should receive.

In Idaho, the Living Will and Durable Power of Attorney for Health Care are combined into one document. The Durable Power of Attorney for Health Care will go into effect if for any reason you are unable to communicate your desires concerning your care. Giving your agent authority to make decisions for you is necessary for individuals who have a chronic illness, such as Alzheimer’s, and need someone to make day-to-day healthcare decisions for them.

In the Durable Power of Attorney for Health Care you may give your healthcare agent directions as to the kind of medical treatment and healthcare that you want to receive. You should also have a conversation with your designated agent to make sure he or she is willing to act on your behalf and follow your directives.

This leads us to the third document, the Physician’s Order for Scope of Treatment (POST). The POST is a one-page document that you fill out with your doctor. Section A functions as a “Do Not Resuscitate Order.” If you do not want to be resuscitated if your heart and breathing have stopped, you would indicate this.

Sections B and C indicate your desires for medical interventions and for artificial fluids and nutrition; however, unlike a Living Will, these sections do not specify under what circumstances your desires would take effect. To avoid conflict between your Living Will and your POST, you should fill out the “Other Instructions,” (in Sections B and C) indicating under what circumstances your directives apply. For example, you might say “My directive applies if I have a terminal illness and death is imminent or if I am in a persistent vegetative state.” An alternative way to handle this issue is to defer decisions concerning your medical interventions and artificial fluids and nutrition to your agent named in your Durable Power of Attorney for Health Care.

These documents ensure that your desires will be followed. It is your life; your wishes matter.

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a senior’s legal, financial or healthcare needs, please call us.