Author Archives: Tom Packer

Determining Capacity

It’s better to sign powers of attorney before you have a crises.

Here is a story frequently recounted to me by families: Mom and dad have lived a full life together, but recently things have started to change. Dad has been diagnosed in the early stages of Dementia and mom has developed some physical limitations. Together they manage, but alone they are not able to care for themselves. This recently became apparent when mom got pneumonia and went to the hospital, and dad could not remain at home alone.

Wondering what to do to help their parents, adult children often come to me for advice on how to prepare their parents for the future. I always ask if their parents have financial and healthcare powers of attorney, knowing how important it is for them to have someone who can step in and help them if they need. This is even more important if they are considering facility placement or a Medicaid application.

Often, learning that they do not have powers of attorney, I ask if their parents are competent, or if they have the capacity to understand and sign documents. This question opens a can of worms, because the children don’t know the answer, and I am forced into making a capacity determination—something I try to avoid when possible. If only the parents had planned for this possibility and prepared the documents when they were competent, thinking clearly and knew what they wanted. Needless to say, a person should make these decisions when they are at their best, not at their worst.

As a lawyer, sometimes I must assess the capacity of the person needing to sign documents. Capacity is determined in the areas of their cognitive, emotional and behavioral abilities. Possible signs of cognitive incapacity include short term memory loss, communication problems, comprehension problems, lacking the capacity to understand multiple alternatives, problems with mathematical calculations, and disorientation. Emotional signs of incapacity include significant emotional distress and emotional inappropriateness. And behavioral signs include delusions, hallucinations or poor grooming and hygiene. Knowing the person’s abilities and deficits in all these areas, rounds out the total picture. It is not easy to determine when someone has crossed the line and is incapacitated.

Unfortunately, it is in this crises stage that I see many of my clients, and I must make the determination if the person has the capacity and understanding to sign documents, which hands their right to make decisions over to someone else. This decision becomes increasingly difficult if the children of the parents have differing opinions about what is best. In that case, I must also make the determination if any of the children are exerting undue influence on the parent.

In conclusion, Seniors lives take many turns. Events sometimes change one’s ability to live life in the way that he or she had hoped for. It is better to prepare powers of attorney early when one is competent, and there will less chance that the decisions made will be challenged on the grounds of incapacity.

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.

January 2018

Take Joy!

The following is a quote my mother gave me when I was a young adult. She recognized the obligation and necessity of finding our own joy, peace and happiness. I had a local artist do the artwork around the quote; I then gave it back to my mother for Christmas. I hope you enjoy it as much as we have.

As we celebrate this holiday season and contemplate the beginning of a new year, let us find joy and peace and help those around us to find it as well.

We wish you a joyful holiday season!

December 2017

Maintaining Financial Boundaries

By setting boundaries, harmony in the family can be preserved.

In my Elder Law practice, I counsel regularly with older adults and their children. Some of their stories and challenges are unique, but some I hear over and over again. When this happens, it seems worth writing a tip about it.

As adults age and start to require assistance in paying bills and making financial decisions, often a well-meaning adult child will come alongside of his or her parents to help them in financial matters. For example, an adult son may start by writing checks and have dad sign them. As mom needs help with the groceries, an adult daughter may pick up a few things for her and pay for mom’s groceries along with her own. Somewhere along the way, boundaries are blurred, and the well-meaning adult child begins to have a sense of ownership and entitlement to dad or mom’s property.

Other times, an adult child, who never really figured things out for himself or herself, starts to rely on mom—her fixed income and limited assets—for his or her support. Moms are especially easy prey in these situations. Their love for their children knows no boundaries, and they sometimes willingly sign over the farm and anything else that may be asked for. Mom’s happiness and even her daily needs are now inextricably tied to her children’s choices concerning her.

The problems that both scenarios create are endless. If the adult son or daughter has paid for things out of their own pocket, they may feel they should be compensated for past purchases or even services provided.

When other siblings learn of financial exploitation of a parent, family relationships are fractured, which is the last thing mom and dad want. Also, Medicaid eligibility, which funds assisted-living care, can be jeopardized if parents have given away their property. Wills can become meaningless, if in the parents’ lifetime they give their property to a child. I could go on, but I think you get the picture.

So, what is the solution? Maintaining good boundaries is essential when helping an aging parent. With regard to finances, maintaining boundaries starts by approaching the task with the attitude that a parent’s property is their sole property and should be used solely for their benefit. That’s not to say that a parent cannot use discretion to purchase gifts for children and grandchildren. But, if the gifts become excessive or lopsided between family members, that can be a red flag, and it can become a breeding ground for trouble and discontent among siblings.

The next step is putting in place an accountability system for the person who is assisting the parent. It can be a simple system of saving receipts for the groceries and writing a check to be reimbursed for the amount of the purchase. A little accounting can go a long way to prevent suspicion or misunderstandings.

The third step in maintaining good boundaries is transparency with other family members. As a family, talk with parents about how they would like to be helped, put a plan in place that is understood by the family, and as the plan is carried out, routinely update family members with information. This way, harmony can be preserved, and parents can have the dignity and respect that they deserve.

Thomas W. Packer

November 2017

Wills and Probate

In Idaho, probating a Will is a simple process.

Probate of a Will is generally necessary when title to property must be transferred at a person’s death. Probate allows for supervision of the estate by the Court, gives notice to heirs of the proceedings, and provides an opportunity to settle creditor claims.

Probate can be informal or formal. In Idaho, informal probate is a simple and efficient process that does not require Court hearings or judicial supervision. The estate can be distributed in a few weeks to a few months depending on the assets, creditors and heirs of the estate.

There is a 5-day waiting period after a person has passed away before an application for probate can be filed with the Court and the Personal Representative appointed. Once appointed, the Personal Representative inventories the property of the estate, identifies and pays creditors and then distributes the money and property in the estate according to the Will.

Formal probate involves a judge and is recommended when the Will is being contested. Will contests are usually raised for the following reasons: lack of testamentary capacity, undue influence, failure to witness or execute the Will properly or ambiguity in the Will concerning the decedent’s wishes. When writing a Will it is important to recognize and avoid these problems.

Recently, I had an adult child call me about his mother’s Will. He felt that he would be treated unfairly in the Will. He demanded that his mother change the Will and threatened to challenge the Will if she didn’t disrupting the family peace. This may not have raised to the level of undue influence, but it was certainly inappropriate.

Another client brought me his parent’s Wills to be probated after his parents had passed away. The Wills had been printed off the internet and signed. As I reviewed them, I determined that the Wills had not been properly witnessed or notarized, leaving their validity open to challenge.

You work a lifetime to accumulate your estate. You should take great care when writing your Will and seek expert advice when appropriate. The Will contests that I have done in my career have involved Wills drafted by individuals, their friends or their family.

October 2017

Jointly Held Property

If you hold title to your home as community property, your home does not automatically transfer to you at your spouse’s death.

Joint tenancy lets two or more persons—the joint tenants—to own property with a right of survivorship. This means that when one of the joint tenants dies, the surviving joint tenant automatically receives the deceased tenant’s share of the property. For example, in Idaho many people own vehicles as joint tenants. By using the magic word or instead of and when they list vehicle owner’s names on the title, they create a joint tenancy. Upon the death of one of the joint tenants, the surviving joint tenant simply signs a request for a new title at the assessor’s office to have the title to the vehicle transferred into his or her sole name.

Many couples in Idaho falsely assume that their home will also transfer automatically to the surviving spouse. But, Idaho is a community property state, and this is not the way community property laws work. There is, however, a way to hold title to community property so that it does transfer automatically. The magic words are found in Idaho Code §15-6-401. The deed transferring the property must include these words: “to be an estate in community property with right of survivorship.” If a couple wonders how they hold the title to their home, they should check their deed for these words. If these words are not in the deed, they can prepare a new deed to themselves using these words. When a couple holds title to their home as community property with a right of survivorship, they will avoid probate on the death of the first spouse. All the surviving spouse needs to do to transfer the title to the surviving spouse is to record a death certificate.

September 2017

Involuntary Discharge

Understanding Facilities Involuntary Transfers/Discharges

Facilities must meet certain conditions for involuntary discharge.

Do you have a loved one in a facility? Most of the time facilities provide compassionate, quality care to their residents. However, occasionally facilities will involuntarily discharge or transfer a resident against their wishes. A facility may only transfer or discharge the resident under the following conditions:

It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
The resident’s health has improved sufficiently so the resident no longer needs the services provided;
The safety of individuals in the facility is endangered;
The health of individuals in the facility would otherwise be endangered;
The resident has failed, after reasonable and appropriate notice, to ensure payment for a stay at the facility.
If the facility is going out of business.

Some examples of when it would be appropriate to transfer a resident are if the resident could transfer to lower level care, the resident is continuing to physically abuse another resident, a resident persists in smoking in the facility, or a private-pay resident promises to pay but doesn’t.

Examples of situations that would not meet the criteria for discharge are if the resident aimlessly wanders, the resident is making loud sounds, the resident’s refusal for treatment as long as it doesn’t endanger another resident, or conversion from a private pay rate to a payment at the Medicaid rate. If a resident is deemed to be “difficult” that is not reason enough for a facility to seek discharge.

If there has been a significant change in the resident but it is not an emergency, the facility must conduct an assessment to determine if a new care plan would allow the facility to meet the resident’s needs.

The resident’s record must document the facility’s efforts to resolve the situation before the decision to transfer is made. In addition, the facility must give a 30-day written notice to the resident of its intent to transfer, which includes a statement that the resident has the right to appeal the action to the State, and the facility must also include the name, address and phone number of the agency responsible for the advocacy of the resident.

Facilities exist to care for people with physical and cognitive problems. Problems present opportunities for finding solutions that allow facilities and residents to work together, and for facilities to do better for the communities they serve.

August 2017

Good Communication

Best results come when we consult before deciding.

In the book Getting Together by Roger Fisher and Scott Brown of the Harvard Negotiation Project, they make the following recommendation: “If I have an ongoing relationship with you, I should consult you before making a decision that would significantly affect you.” They go on to say, “To consult means to ask your advice. It is not enough to tell you a decision after it has been made. Consultation does not require that we agree or that I give up such authority as I may have to make a decision. But it does require that I inform you of a matter on which I may decide, that I request your advice and views and listen to them, and that I take them into account in making a decision.”

The practice of consulting others before we make decisions that will affect them, opens the lines of communication, builds trust, improves relationships, and produces better outcomes—outcomes that are the result of the combined ideas, interests, insights and experiences of everyone involved.

I have noticed the tendency of some children to fail to consult with their parents as their parents grow older. They assume they know what’s best for the parent and begin making decisions in their parent’s lives involving the parent’s finances, healthcare, living arrangements—and even small decisions like what restaurant to go to or where to sit at a family gathering. This can be demeaning and even embarrassing to the parent who wants to maintain their independence and control over his or her life for as long as possible. Unless a person is incapacitated, a good rule of thumb to follow is to always consult before making a decision.

My wife and I have a saying that we try to follow when it comes to communication. It goes like this: “Speak freely, trust completely and forgive immediately.” First, we agree to speak freely—we should feel free to express our thoughts and positions without fear of being criticized or put down. Second, we agree to trust completely—we make a commitment to always give the other person the benefit of the doubt, to assume that they have our best interest at heart and that they desire to communicate without offending or alienating us. And third, we agree to forgive immediately—we have learned that no matter how hard we try or how long we practice, we fall back into old patterns and make mistakes, and therefore we agree to forgive immediately if offended.

Communicating well with others is not easy, but it is worth the effort. By getting everyone’s point of view, it is more likely we will have a better result. Taking the time to consult before deciding will have a positive effect on any relationship.

July 2017

Guardianship and Conservatorship

What to do if your parents need help and don’t have a Power of Attorney.

Recently in my elder law practice, I have met with several clients who are concerned for their parent’s welfare, but lack the authority to intervene on their behalf. In many cases, dementia has afflicted Mom or Dad, leaving them unable to handle their finances. They may also be at risk of wandering, getting lost or becoming forgetful and confused. At this point the parent may lack the legal capacity to sign Powers of Attorney to have someone step in and give them the needed help. In cases like this, a family member can petition the court for a Guardianship and Conservatorship of an incapacitated adult.

After petitioning the Court, the court may appoint a Guardian or a Conservator or both, if it is determined to be in the best interest of the incapacitated adult. The following explains what each provides:

A “Guardianship” involves a person being appointed by the Court to make legal decisions for another person. Usually this is a spouse, adult child, or another extended family member. The Court issues Letters of Guardianship which give the family member the authority to oversee healthcare decisions, living arrangements, and the welfare of the person in need of a guardian. The Court monitors the guardian and requires an annual report.

A “Conservatorship” involves a person being appointed by the Court to manage the financial affairs of another person. The Court issues Letters of Conservatorship which gives authority to someone to pay bills, make financial decisions or protect assets for the incapacitated adult. The Court monitors the Conservator and requires an annual report to the Court concerning the finances of the person.

When older adults are forward-thinking, they will put in place Powers of Attorney for Healthcare and Finances, and choose who THEY want to be their agents. This way they can name someone they trust, and discuss their financial and healthcare situation with that person and let them know what they want to have happen.

June 2017

8 Ways to Avoid Probate

Is it worth your while to avoid Probate?

If you are interested in avoiding probate, you might want to check out Mary Randolph’s, J.D. book “8 Ways to Avoid Probate.” If you own property at your death, probate offers an orderly process to transfer that property to others. However, there are ways called nonprobate transfers to pass property to others without going through probate. Here is the list from Mary Randolph’s book:

1. Set up a Pay-On-Death (POD) account. This is done by signing a form provided by your financial institution or bank, designating to whom you want your checking and savings accounts to go to at your death.

2. Name a beneficiary for your retirement account and for your stocks and bonds. Again, you do this by designating your beneficiaries on a form provided by your financial institution.

3. Transfer of Vehicles at your death. In Idaho, there is no law allowing you to set up a transfer on death of your vehicle to another person. Some people create a joint ownership with the right of survivorship by putting their adult child’s name on the title to the vehicle. This can be risky because a creditor could sue the child and take the child’s interest in the vehicle. If your estate is small enough, your heirs can transfer the title to the vehicle by filing a small estate affidavit with the county assessor.

4. Transfer of Real Estate. Real property, such as a house, can be transferred to a spouse without going through probate if the couple holds the title to the property as Community Property with a Right of Survivorship. In addition, real property can be transferred by deeding the property to a person, but retaining a life estate in the property. This allows the person to continue living in the house until their death, and then title is transferred by recording a death certificate.

5. Hold property in as Joint Tenancy. This usually refers to setting up checking or savings accounts as joint tenants with a right of survivorship. When one of the account holders dies, the money in the account passes to the survivor. This works well with a spouse; however, if you put an adult child your account to help you pay bills, it may not be your intention for the child to have the money in the account at your death. This issue has led to many court cases to determine what the person’s intent was, when they put their child’s name on their account.

6. Create a Living Trust. When you create a trust, you transfer all of your property into the Trust. When you die, there is no probate because you own no property. The terms of the trust determine how the property passes at your death. This avoids Probate, but be aware that Trusts must be managed, and over time as things are acquired, they must continually be put into the trust–it does not happen automatically.

7. Small estate procedures. If the total value of all your assets in your estate is less than $100,000, your heirs can claim the property by filing an affidavit with the person or institution that has the property belonging to your estate. This refers to anything but real estate.

8. Make a gift. Property you give away before you pass away does not go through Probate. However, you should never give away property that you might need. There are also Medicaid rules about giving property away, that could prevent you from being eligible for Medicaid if you have given away property in the previous five years.

Avoiding probate is only one of the factors you should consider in planning how to transfer your property at your death. A Will does require Probate, but in Idaho it is a fairly simple process. It’s a good idea to seek legal advice so that your unique situation is handled the best way for you!

May 2017

The Savvy Health Care Consumer

Knowing what you’re paying for and what your rights are is vital!

The rising cost of healthcare has been a talking point for politicians for many years now. While healthcare covers a wide range of situations, I focus on helping Seniors get the right care, whether it is in their home or in a facility, ensuring that they have the best quality of life possible. The rising cost of medical care, especially care for older adults, requires us to be informed consumers. We pay a lot for insurance and healthcare as Americans, and we should do so with a feeling that we are receiving quality service at a fair price.

A symposium has been scheduled on April 20, 2017 at 2:00 p.m. in the Needle Craft building at the Bingham County Fairgrounds located in Blackfoot. (See attached invitation) This is a FREE event, focusing on Senior’s needs, and the speakers will address Home Health issues and answer the question of “How Can You Get the Best Care for Your Dollar?” You are invited to come and listen to a panel of local experts discuss these matters that are so vital for Seniors to understand. In addition, your rights as a consumer will be addressed. Did you know that you have the right to challenge or change your provider if not satisfied?

Sometimes the caregiver and the patient are not the right fit. If needed, changing your provider may be necessary to ensure that your loved one receives the best care.

See you at the Symposium!

April 2017