For your family’s sake, have a Will.

I have a brother-in-law who comes up to me each year at our family reunion and says: “I have never been to an attorney’s office, and I am never going to go to one.” Finally, after hearing his chide for several years, I replied: “That’s great for you, but you’re going to leave your children a big mess.”

It is a common scenario for a parent to pass away without doing any planning. They may have one child on their bank account and another on the title to their car. They haven’t designated anyone to act as their personal representative, and they haven’t indicated to whom they want items of personal property to go to. Frequently, they have a mortgage on their house, credit card bills and have not done anything to pay for a funeral, leaving the burden on their children to figure all of this out.

When a person dies without a Will, it is known as intestate succession. If he or she is the last surviving parent, each of the children has an equal right to serve as the personal representative of their parent’s estate. The personal representative has the duty to inventory their parent’s property, to pay all creditors and to divide the remaining estate—according to the intestate laws, not the person’s wishes—equally among the heirs.

In this process, things do not always go smoothly. For example, children frequently say that Mom had verbally told them they could have an item of personal property. However, since it was not written in the Will in the Tangible Personal Property List, Mom’s verbal commitment is unenforceable. The children are left trying to negotiate what is a fair division of family heirlooms and other items of personal property.

Additionally, the daughter with her name on the bank account can withdraw the money in the account since she was a joint tenant on the account with a right of survivorship. A son, with his name on the car title can transfer the title to himself. Was that the parent’s intent?

Finally, are there sufficient assets in the estate to pay off Mom’s debts and are the kids, who may be struggling financially themselves, able to pay for the funeral? All this leads to unnecessary argument between the siblings. Perhaps one sibling is overbearing, making it difficult for each to receive things that were intended for him or her.

Having a Will does not mean you don’t have to probate your estate, but in Idaho, it is usually quick and painless. With a Will you have named your personal representative, you have indicated in writing to whom personal property items go and you have indicated how you want your estate to be divided.

Having peace in families is a desirable goal. A little planning can make life much easier for those left to settle your affairs.

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 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:

1. 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.
2. Living Trusts save taxes: A revocable living trust saves no more estate taxes than a properly drafted will.
3. Living Trusts help you avoid contested wills: Living Trusts are contested on the same grounds that wills are contested.
4. Living Trusts help you avoid creditors: During your lifetime andafter your death, your assets are subject to the claims of creditors.
5. 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.
6. Living Trusts avoid the expense of a Conservatorship: It can only avoid the cost in some circumstances.
7. 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.
8. 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.
9. Probate requires court hearings: Idaho provides a simplified probate process, which involves no court hearing and may not require the filing of an inventory.
10. 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.

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.

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.

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.

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.

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.

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

1. you are unable to communicate, and
2. you have an irreversible injury, disease or illness, and
3. 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
4. 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.

Providing for a disabled child.

Sometimes parents will raise a developmentlly disabled child and continue to care for the child into adulthood. If one of the parents develops a chronic-health problem, the parent may not have the resources to care for the disabled child and to provide for his or her own needs. In such a case, the parent will frequently turn to Medicaid to help pay for care. This raises the question of how does the parent qualify for Medicaid and still provide for the disabled child?

The answer is for the parent to set up a Special-Needs Trust (SNT) for the child. A transfer of assets into a SNT for a disabled child is an allowable transfer under Medicaid rules. By making the transfer, the parent’s assets can be reduced below $2,000.00, thereby, meeting Medicaid’s asset elibility requirements.

What if the child is receiving Medicaid? Does transfering assets into a SNT make the child ineligilbe for government benefits? A third-party SNT is established with the assets of someone other than the disabled child. Therefore, if the trust is set up and administered properly, it is used to supplement not supplant public benefits. The resources available in the trust can be used to improve the quality of life of the disabled child. Once the trust is created and funded by the trustmaker, other relatives of the disabled child, for example the child’s sibliings, can direct assets to the trust. Finally, the parent can choose who the assets in the trust will go to when the disabled child passes away.

With proper planning, a parent with a chronic-health problem can qualify for Medicaid and still provide for a disabled child without disqualifing the child from government benefits.

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.

A way to provide for a spouse with Alzheimer’s in your will.

When one member of a couple is diagnosed with Alzheimer’s, the other spouse is often still healthy. The healthy spouse frequently becomes the care provider for the spouse with Alzheimer’s allowing him or her to remain in their home. Being a caregiver, however, can be an exhausting and stressful responsibility and can take its toll on the healthy spouse. Consequently, it is not unusual for the healthy spouse to predecease the spouse diagnosed with Alzheimer’s. This may create a problem if the estate of the healthy spouse goes to the spouse with Alzheimer’s, since it may disqualify the spouse with Alzheimer’s from receiving Medicaid.

Fortunately, federal law allows the healthy spouse to create a testamentary Special Need’s Trust (SNT) that prevents his or her estate from passing to the spouse. Since the assets of the SNT are not available to the spouse with Alzheimer’s, they are not counted toward Medicaid eligibility. The Trust can then be used to provide for the supplemental needs of the spouse with Alzheimer’s, that are not covered by Medicaid. Money from the trust can be used for many things including medical equipment, trips or other special events which increase the dignity and quality of life of the spouse.

The following case study gives an example of how this works. Ron and Sheri had been married for several years, when Sheri was diagnosed with Alzheimer’s. Ron told Sheri that he would care for her in their home for as long as he was able. After a year of providing care, Ron is diagnosed with inoperable lung cancer and will most likely predecease Sheri. Ron changes his estate plan and writes a new will setting up a testamentary SNT for Sheri. When Ron passes away and Sheri moves into an assisted-living facility, her children can file an application for Medicaid to pay for the cost of her care. The money in the SNT will not be counted towards her eligibility for Medicaid and can be used to provide for Sheri’s supplemental needs and enhance her quality of life.

A healthy spouse, concerned about the well-being of a spouse diagnosed with Alzheimer’s, can continue to provide for that spouse even after he or she passes away by establishing a testamentary SNT.

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.

When applying for Medicaid you need a Powerful Power of Attorney.

Kerry Peck and Rick L. Law in their book “Alzheimer’s and the Law” refer to what they call a powerful power of attorney. A powerful financial power of attorney is one that includes the power to do Medicaid-related asset protection. It might include the following provisions:

• the Power to make gifts to specified loved ones such as a spouse or disabled child
• the power to create a trust, or if the person has a trust the power to add or remove assets from the trust.
• The power to apply for public entitlements like Medicaid

Why are these provisions important in a financial power of attorney for a person who has Alzheimer’s? Here’s an example of a situation we recently encountered.

A son hired us to file an application for Medicaid for his father. The father had no assets, however his income exceeded Medicaid’s maximum allowed monthly income of approximately $2022.00. In order to qualify the father, we suggested an approved strategy of preparing a Qualified Income Trust (Miller Trust) to reduce the father’s income below the maximum monthly income allowed.

Since the father was no longer competent to sign the trust documents, the son provided us with the copy of a standard power of attorney naming the son as the father’s agent. However, the power of attorney failed to state that the son had authority create a trust.

Several banks advised us that without this authority they would not set up a checking account for the Trust. The son was faced with the prospect of having to go to court and apply for a conservatorship, with its additional cost and reporting requirements to get the authority he needed to set up the Trust.

This situation could have been avoided by creating a powerful not powerless power of attorney. If filing for Medicaid is a possibility for an older adult, remember to include in the financial power of attorney the authority to complete the necessary transactions to qualify 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.

Most people understand that estate planning is important, even though they frequently put it off because it is hard to think about leaving their loved ones. It is critical to plan for the giving of property, succession of a business, incapacity, guardianship of minor children and end-of-life issues.  By establishing your goals and having a plan in place, you will be prepared for the future, and you will take the stress off of your loved ones.

If you do not plan, your estate will be probated and your property may pass to persons you didn’t intend. If you have a Will, your estate is still probated; however it will be done more smoothly and according to your wishes. For smaller estates, it may be more practical to transfer property using a pay-on-death account and a deed that reserves a life estate.

To avoid probate, many people will use a Revocable Living Trust, which is often more expensive and complex than a Will and can complicate eligibility for Medicaid.

Many people plan their estates, but fail to plan for incapacity.  It is essential, before you become incapacitated, that you give someone authority to handle your finances using a Financial Power of Attorney and to make healthcare decisions for you using a Durable Power of Attorney for Health Care.  By completing these documents, your family will know your wishes, and you will avoid the need for costly guardian and conservator proceedings.

In summary, here are 10 things that estate planning can do for you:

1. Provide security and guidance for your immediate family.

2. Provide for other relatives who need help through special trusts.

3. Get your property to beneficiaries easily and quickly.

4. Plan for incapacity by choosing who will make decisions for you.

5. Minimize expenses by reducing the court’s involvement.

6. Reduce estate and inheritance taxes.

7. Make sure your business has an orderly succession.

8. Ease burdens by letting your family know your wishes.

9. Set up a way to give financial support to a favorite cause.

10. Have peace of mind knowing that your desires will be carried out.

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.

Holographic wills are frequently ambiguous, challenged by heirs and result in costly litigation.

A holographic will is one written in the handwriting of the person making the will. In Idaho a holographic will is valid, whether or not it is witnessed, if the signature and the material provisions are in the handwriting of the testator. (Idaho Code §15-2-503) Even though Idahoallows holographic wills, they can cause many problems.

A brief example illustrates this point. A woman brought in the will of her sister, who had recently passed away.  The sister had handwritten her will in a fill-in-the-blank form that she had obtained. Because of ill feelings toward some of her siblings, the sister had left her entire estate to the woman who had brought in the will, leaving nothing to her other 2 siblings.

When we filed the will for probate, it was quickly challenged as invalid by the excluded siblings because the material provisions were not completely in the handwriting of the sister. The woman who brought in the will claimed she had many witnesses who would testify that her sister intended to leave her everything; however, it was clear the will was invalid and the sister’s estate would be divided equally amoung the siblings under Idaho’s Intestate Laws. This is what eventually happened.

Holographic wills are frequently ambiguous, try to do things that cannot easily be done, lead to challenges by potential heirs and result in costly litigation.

If holographic wills foster litigation, which perpetuates feelings of bitterness among the heirs, it would be better to seek legal advice from an attorney in drafting the will.