Author Archives: Tom Packer

Home Health and Hospice

How to ensure your loved one receives quality care.

Home health is a broad term that describes a variety of services provided in the home. Generally speaking, home health is intermittent care provided by nurses, physical therapists, speech therapists, occupational therapists, medical social workers, and home health nursing assistants to persons confined to their homes, who are in need of short term acute health care.

Medicare funds Home Health care. Consequently, certain conditions of eligibility apply. For example, an individual must have a valid Medicare policy, be essentially homebound, have a doctor’s order for Home Health Services, require one or more of the above referenced services, and have a medical condition that will respond to treatment.

Hospice is another form of care designed to support an individual and their family during an advanced illness. Hospice care focuses on comfort and quality of life, rather than treatment or cure. Physicians, nurses and other caregivers oversee an individual’s care in the comfort of their home or assisted living facility. The goal of hospice care is to enable the individual to have an alert, pain-free life by managing symptoms and pain. Hospice promotes peace of mind to help individuals live better with their illness.

Hospice is funded by Medicare and other private insurance companies. Although many people think of hospice care in relation to terminal cancer, many other end-of-life health conditions may qualify a person for hospice.

The initial hospice benefit is for six months of coverage. However, this time can be extended in 60 day increments as long as the person continues to meet the medical criteria.

Your rights as a patient in these programs are important to understand. For example, as a Medicare beneficiary you have a right to choose your home health agency, have your property treated with respect, receive a copy of your plan of care, and to participate in decisions about your care. Each hospice patient has the right to: be treated with respect, receive quality end-of-life care, receive notice of his or her rights, receive information on advance directives including a living will and healthcare surrogate, voice concerns and not be discriminated against for doing so, receive pain management and symptom control, Be involved in developing his or her hospice plan of care, refuse care or treatment, choose his or her attending physician, and to be free from mistreatment, neglect, or verbal, mental, sexual, and physical abuse.

A symposium has been scheduled on April 20, 2017 at 2:00 p.m. in the Needle Craft building at the Bingham County Fairgrounds. You are invited to come and listen to a panel of local experts discuss these matters that are so vital for seniors to understand. For more information on the symposium you may call Paul Johnston at 208-782-1441 or you may call our office.

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.

Probates: Transferring Your Property

How to ensure your property goes to those you desire, smoothly.

A lifetime often results in the accumulation of a significant amount of property. What happens to our property at the end of our lives? While a will is the determination of where you would like your property to go, probate refers to the actual process by which ownership of the property is transferred. In other words, the probate is the enactment or actualization of the will. In the event that a will does not exist, probate follows a process of distribution established by the law.

Probate can generally be broken down into four steps. The first is the courts’ official recognition of the personal representative, or executor. A personal representative is needed to oversee the distribution of the estate. Most often nominated within the will, this individual is empowered to perform a wide range of activities, including the signing of property deeds, filing tax returns, closing financial accounts, and selling assets. This person ought to be someone who is both trustworthy and responsible.

The second step involves the personal representative making an inventory and appraisal of all the decedent’s property. This is then filed with the probate court.

Third, any debts of the decedent are paid by the personal representative from money obtained from the estate. The order in which debts are to be paid is important, and must precede the distribution of the inheritance. Keep in mind that neither the personal representative nor other family members are held liable for debt not covered by the assets of the estate.

Finally, the remaining assets are distributed among heirs in accordance with the will (or in accordance with the Uniform Probate Code if a will does not exist). Distribution may occur through liquidation of the remaining assets or allocation of the property as is.

There are a few points important to note when it comes to Idaho probate:

An informal probate is common and does not require court hearings or judicial supervision. Formal probate, involving a judge, is needed in situations where disputes arise or ambiguity exists regarding the decedent’s wishes.
In certain circumstances, Trusts or Joint-Tenancies are better suited and can avoid probate altogether. But note that in Idaho, probate is a fairly easy process.
Sometimes cases arise in which property is owned outside of the decedent’s state. In these instances, it is important to consult with your legal advisor to determine jurisdiction and whether an ancillary probate is needed.

It’s always a good idea to maintain careful records of your debts and assets, including deeds and documentation of bank accounts, certificates, insurance policies, stocks, and bonds. Keep your papers together in an accessible, safe place. By doing this, you ensure that your property will pass to those whom you designate, and that the transfer process will go as smoothly as possible for your loved ones.

Health Care and Property Powers of Attorney

Having a Power of Attorney in place before you need it, is best!

Many times, important decisions must be made at a time when you are least able to make them. For instance, a sudden illness could temporarily or permanently take away the ability to make decisions. Since you don’t know what unforeseen events lie ahead, it is best to have powers of attorney in place, so a trusted person can step in and help if needed.

A “Power of Attorney,” or POA, is a legal document that authorizes a person of your choosing to act on your behalf in certain situations. The two most common types of POA’s are property and healthcare. The primary use of a POA is having someone legally empowered to make decisions for you if you become ill, incapacitated or even absent. Having such legal documents in place prior to the need arising, allows you greater control over what happens.

As you grow older, sometimes you need help when routine financial tasks become confusing or difficult. A Power of Attorney for property allows someone to step in and help you pay bills, sell property or apply for Medicaid. In contrast, a Durable Power of Attorney for Healthcare only comes into effect if you are unable to communicate. In that case, your agent has the authority to carry out your desires for medical treatment that you expressed in your Living Will.

It is important to recognize that your family cannot get a POA after you have become incapacitated. If you become incapacitated without a valid POA, a court may have to appoint a Guardian and Conservator to make important decisions for you. When this happens, sometimes family members fight over who will be appointed, and the costs to obtain and maintain a Guardianship and Conservatorship are high.

Many people feel some apprehension about creating a POA. They wonder, will my assets and money be kept safe? How do I know the authorized person will act in my best interest? These are valid concerns that can be addressed at the time of drafting a POA.

Here are a few tips you may want to consider when deciding to move forward on your power of attorney:

Select someone who you trust and is competent to make difficult decisions in complex situations and who is looking out for what is best for you. While steps may be taken to prevent against abuse and fraud, there is no substitute for a trustworthy, qualified agent. A child or sibling can make for a good potential candidate.
Creating a POA in no way limits your current access or control over financial and healthcare decisions.
You have the option to revoke a POA should circumstances change that make it in your best interest to do so.
A POA does not replace a person’s Will. POA’s are designed to terminate automatically upon death.
Having a Power of Attorney for property is safer than putting someone on your checking account.

If you have the foresight and prudence to plan for incapacity before the need arises, you will be in the driver’s seat when important decisions in your life have to be made by others.

Thomas W. Packer
186 East Judicial Street
Blackfoot, Idaho 83221
208-785-5600

Community Property

Idaho is a community property state.

In the United States, there are only 10 states that are community property states—Idaho is one of them. It’s a good idea to know how community property laws work. Let’s talk about how some of these laws affect us in our daily lives.

First, there are two types of property: community and separate. Community property is all the property and income obtained by either spouse during the marriage. Either spouse has the right to control or obligate the community property. However, to sell or encumber real property requires the signature of both spouses.

Debts that are incurred by either spouse during the marriage are owed by both spouses—even if a debt is incurred in only one of the spouses’ names. A creditor can garnish money from a joint account, or even an account titled in the name of the spouse that did not incur the debt. It’s wise to pay attention to debts being incurred by your spouse.

Separate property is all property owned by either spouse before marriage, or acquired by either a gift or an inheritance. The husband or wife cannot obligate the separate property of the other spouse.

The nature of property, whether community or separate, affects how property passes when you die. If you die without a Will and have a surviving spouse, but no children, all your community and separate property passes to your spouse. However, if you have surviving children, they would get half of the separate property, but none of the community property.

If you have a Will, you can give half of the community property and all of your separate property to whomever you designate in the Will. Be aware, however, a surviving spouse can claim a homestead allowance of $50,000 that has priority over other gifts in the Will unless you state in the Will that that is not your intention. This can create problems when there has been a second marriage, if you intend for the property to go to your children.

In addition, Idaho law allows spouses to prepare a Community Spouse Deed, which transfers the title of real property (such as a house) to the surviving spouse, without going through probate. This is done by simply recording a death certificate, saving both time and money.

There are many more Idaho laws that govern what happens to our community and separate property when you pass away. To have things happen the way you want, it’s a good idea to have a Will that clearly states your intentions.

Remembering Our Loved Ones

Don’t be too busy for elderly family members or those in the community.

Just this month, my wife and I attended a family dinner to celebrate my father-in-law’s 88^th birthday. Something he said caught my attention, and I thought I would share it with you. He said he wanted to stay here—even though getting around was becoming harder—because of the love of his family. He said he didn’t want to leave us.

I often think about all our clients, many in nursing homes, some with ailing health, and want to remind each of us not to be too busy to do what our loved ones really want—to spend time with them.

Life goes by too quickly and sometimes we let the more important things slide in all the hustle and bustle. One of my favorite authors, Richard L. Evans, wrote the following about older adults:

“In the eager and active years of youth, it isn’t easy to understand how parents feel as their flock, one by one, leave the family fireside. To be so long the center of a home, so much sought after, and then almost suddenly, to be on the sidelines watching the procession pass by—this is living into loneliness. We may send gifts and messages on special days…or make an occasional quick call. But passing and perfunctory performances are not enough to keep loneliness in its place the whole year round. What they need in their older years, is in part at least, what we needed in the uncertain years of our youth: a sense of belonging, an assurance of being wanted, and the kindly ministrations of loving hearts and hands; not merely dutiful formality, not merely a room in a building, but room in someone’s heart and life.”

Then there are those who have no family of their own. Can we visit them, bring some cheer into their lives and help with their needs? I’m guessing there is no limit to the good that we can do.

Avoiding Scams and Fraudulent Requests

If someone calls or requests money – Beware!

At times, I have clients come to my office and tell me they have been scammed by mail, phone, or on-line—someone had asked them for money, but it turned out to be fake. These scams often target older adults, and they are becoming increasingly more common.

I know a man who received a call and was told he had won a Cadillac. All he had to do was send $5,000 and the car would be his. He sent the money, but he never saw the car. Later, he received another call from a law firm that said they were representing several individuals who had also been scammed by the person who scammed him. He was told that the law firm would help him recover his money if he would send a retainer to the law firm, which he did. He later found out that the alleged law firm was the same person who had scammed him on the Cadillac.

Recently, in our area, someone claiming to be the IRS called and requested individuals to pay back taxes immediately to avoid a costly court settlement. The IRS has said that they will NEVER contact you by phone about your taxes. Unfortunately, many people fell for this before the scam was exposed.

Remember, anyone asking for money or personal information must be completely vetted to know why they are requesting it. If you are contacted by phone, you simply need to reply that you don’t give that information out over the phone unless you have initiated the call. If you receive a request for your personal information by mail or email, don’t respond to it.

Regrettably, these con-artists get very good at convincing you to act. Remember, they get plenty of practice calling dozens of people a day; finding ways to convince people that they are legit and to send money to them immediately. Always check with a family member, trusted friend or an attorney before sending money or your personal information, to be sure that it is safe.

Please don’t let your hard-earned money get into the hands of someone who is deceiving you! It is better to be safe than sorry; it’s impossible to get money back. Included below is an article about Consumer Information from the Federal Trade Commission that will help you avoid the myriad of schemes that are out there.

https://www.consumer.ftc.gov/articles/0060-10-things-you-can-do-avoid-fraud.

Medicare/Medicaid Info

October is the month to review Medicare if needed.

When you turn 65, you become eligible for federal health insurance, called Medicare. You can receive this government benefit, regardless of your income or employment. Medicare is like other health insurances – it has premiums, co-payments and deductibles.

It’s a good idea to understand just what is covered by Medicare and what isn’t. Medicare covers short stays in hospitals or nursing facilities, ambulances, medical aids, prescriptions, therapy, some home healthcare needs and some doctor visits. Medicare will cover up to 100 days in a skilled-nursing facility after a 3-day hospital stay, if you require skilled-nursing services. After the 20th day, there is a significant co-pay that some, but not all supplemental-insurance plans will pay for.

Medicare does not pay for long-term care. Medicaid, another government program, pays for long-term care; however, to qualify for Medicaid you have to meet a means test that looks at your health, assets and income before you qualify—your assets cannot exceed $2,000 and your income in 2016 cannot exceed $2,199 per month. If your income exceeds that limit, you can still qualify by setting up a Miller Trust. If you have a spouse, there are provisions in the law that allow your spouse to keep your home, one car and ½ your liquid assets up to $119,220, so that your spouse is not impoverished while paying for your care.

The initial enrollment period for Medicare begins three months before your 65th birthday, includes the month you turn 65, and ends three months after you turn 65. If you miss your Initial Enrollment Period, you can sign up between January 1 through March 31 each year but it may include a late penalty. October is a good time to review your plan. There is also an Annual Election Period from October 15 through December 7, when you can consider whether you would benefit from enrolling in or changing a Medicare Advantage Plan or a prescription drug plan.

Understanding the laws and knowing what Medicare and Medicaid cover, will allow you to get the most for your money.

Children caring for their parents

Parents and children should clearly define expectations and eliminate misunderstandings.

I’m touched regularly by the goodness of the families I work with in my Elder Law practice. With a large percentage of the population aging, we see more and more adult children who are coming alongside their older parents as primary caregivers.

In years past, a large portion of a family’s wealth was lost to the high cost of assisted-living facility care. We often encounter clients who are thinking outside the box and retiring early from different professions to go to work caring for mom and dad.

Many older adults are electing to stay in their homes where they want to be and receive personal care from a family member. Under Medicaid rules, if a child cares for his or her parents in their home for two years, the parents can transfer their home to the child and still be eligible to receive Medicaid benefits with no period of ineligibility.

When a child provides care to a parent, there are several advantages to having a Personal Care Service Agreement in place:

Clearly defining the caregiver role and tasks can help set expectations and eliminate misunderstandings down the road.
Contractually agreeing to a wage may also prevent other family members from becoming concerned about the transfer of mom and dad’s assets to the person providing care.
If at some point Medicaid benefits are accessed to help pay for facility care, a Personal Care Service Agreement is an essential part of Medicaid and Estate Planning.

Federal and State government programs support and incentivize the idea of families providing care to older adults. Accordingly, there are mechanisms in the law that essentially provide for a transfer of wealth to family members, rather than assisted living facilities, in exchange for providing care. And more importantly, it seems to result in better outcomes for the whole family in terms of health and happiness.

Transfers of Property

There are many ways to transfer property after death.

Estate planning consists of preparing for incapacity during lifetime and transferring property after death to loved ones. Most people think of a Will or a Trust when transferring property. However, there are many ways that property can be transferred:

Will – a document that names a Personal Representative and directs the disposition of property at death. Wills are probated, but in Idaho, this is usually a simple process.
Trust – an arrangement to hold property and assets in trust. A Trust avoids probate, but is more complicated and more expensive than a Will, and it requires maintenance as property is sold or bought during one’s lifetime.
Community Spouse Deed – Most couples in Idaho hold title to their homes as community property. When one spouse passes away his or her name does not automatically come off the title. By changing the title to Community Property with a Right of Survivorship, all that the surviving spouse has to do is record a death certificate to take the deceased spouse’s name off the title.
Joint Tenancy – Most bank accounts with two people are examples of Joint Tenancy. If there are two people on the account and one dies, the survivor gets the account. However, when parents put their adult children on their bank accounts to help pay bills, they make them a joint-tenant, with the right to the money in the account when the parent dies. This often was not the parent’s intention.
Pay-On-Death Accounts (POD) – Most financial institutions will set up a Pay-On-Death account, at no extra cost so that at death, the balance in the account is paid to the persons, in the percentage indicated.
Affidavit of Heirship – Three years after a person’s death, if their estate has not been probated, the person’s heirs may record an Affidavit of Heirship, with the County Recorder, which transfers the title of property to them.
Give it away! – If one doesn’t foresee needing Medicaid within 5 years, he or she may give away property without affecting his or her eligibility for Medicaid; however, by giving property away during one’s lifetime the individuals receiving the property will lose a step-up in basis and may have to pay capital gains tax.
Deed retaining a Life-Estate – One may deed property and retain a life estate. This means that one keeps the property for the rest of their life, and at their death the property passes to the grantee named in the deed.

The decision of which method to use depends on the size of the estate, the type of property held, family dynamics and the goals of the person making the Estate Plan. Care should be taken when implementing any strategy, to make sure it is plainly understood and that it achieves the desired results.

Final Disposition after Death

Who decides what happens to your remains after you have died?

After a loved one has passed away, the last thing families want is a dispute over what should be done with his or her remains. Occasionally this happens, when there are differing opinions and there are no documents in place that express the loved one’s wishes.

In Idaho Code Section 54-1142, it states: If the decedent did not make a prearranged funeral plan, the right to control the disposition of his or her remains vests in the following persons in the order listed:

the person designated in a written document executed by the decedent and acknowledged. (“Authorization for Final Disposition”);
the person designated under a durable power of attorney for healthcare executed by the decedent;
the person designated in a durable power of attorney (for property) executed by the decedent, if it contains express and clear language granting such right to the agent named in such power of attorney;
the competent surviving spouse;
a majority of the competent surviving adult children of the decedent;
the competent surviving parent.

Any question about an individual’s intent is easily resolved if they have executed an Authorization for Final Disposition. This names a Representative and gives him or her the authority to carry out the decedent’s wishes.

As with other decisions, by making your desires clear, it is much more likely that they will be carried out.