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.

Guardianships and conservatorships for older adults are on the rise, probably due in part to the baby boomer generation growing older.  In guardianship and conservatorship proceedings judges are asked to determine the capacity of protected persons. These decisions are complex, and in making them, judges have to balance the individual’s well being against the loss of their individual rights.

In the handbook, “The Judicial Determination of Capacity of Older Adults in Guardianship Proceedings”, developed by the American Bar Association and the American Psychological Association, six guidelines for determining incapacity are listed:

1. Medical Condition:  What is the medical cause of the individual’s alleged incapacities and will it improve, stay the same, or get worse?
2. Cognitive Functioning:  In what area is the individual’s decision-making and thinking impaired and to what extent?
3. Everyday Functioning:  What can the individual do and not do in terms of everyday activities?  Does the individual have the insight and willingness to use assistance or adaptations in problem areas?
4. Consistency of Choices with Values, Patterns, and Preferences:  Are the person’s choices consistent with long-held patterns or values and preferences?
5. Risk of Harm and Level of Supervision Needed:  What is the level of supervision needed?  How severe is the risk of harm to the individual?
6. Means to Enhance Functioning:  What treatments might enhance the individual’s functioning?

These guidelines are evaluated in relation to Idaho’s statutory definition of incapacity found in Idaho Code §15-5-101:

“Incapacitated person” means any person who is impaired, except by minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.

“Incapacity” means a legal, not a medical disability and shall be measured by function limitations and it shall be construed to mean or refer to any person who has suffered, is suffering, or is likely to suffer substantial harm due to an inability to provide for his personal needs for food, clothing, shelter, healthcare, or safety, or an inability to manage his or her property or financial affairs.

According to the handbook, the judge’s role in making a capacity determination is to:

• protect rights
• promote self determination
• identify less restrictive alternatives
• provide guidance to guardians
• craft limited guardianships when possible

Sometimes families need to petition a court to obtain a guardianship or conservatorship for a loved one who has diminished capacity. Because the court would be taking away the fundamental right of self determination—the right to determine where one will live, who one will live with, how one’s money will be managed, and what kind of medical treatment one will receive—this is never an easy decision. In deciding these cases, courts are put in the difficult position of balancing the individual’s rights against ensuring the individual’s safety and well being.

In Idaho, a guardian is a person appointed by the court to take care of another person called the ward. A conservator is a person appointed by the court to manage the financial affairs of the ward.  The guardian and conservator may be the same person, or they may be different persons. In some cases, the court may appoint only a guardian or only conservator depending on the circumstances and needs of the ward.

In recent years, guardianships and conservatorships have been undergoing a dramatic revision. Guardians and conservators are required to complete a training course before the court will issue an order appointing them. Courts are using limited guardianships and conservatorships more frequently, giving only the authority the guardian or conservator needs to assist the ward and to maximize the ward’s autonomy. Finally, courts are providing oversight by requiring the guardian and conservator to file annual reports, so that the court can monitor the ward’s finances and status.

Occasionally, children of elderly parents petition for guardianship and conservatorship to get control of their parents’ assets, rather than seeking the best interest of their parents. In such cases, the children should not be appointed guardian or conservator and a more suitable person should be found.

The decision to grant a limited or a full guardianship or conservatorship comes down to the capacity of the proposed ward. Making a comprehensive capacity assessment gives the court the ability to tailor a guardianship or conservatorship to the ward’s specific needs. Next month, we will discuss how capacity assessments are made.

After raising families and working hard all of their lives, many older adults want to stay put, relax and enjoy life in the comfort and familiarity of their own homes. However, after a health care set-back or facility stay, many seniors lack support from family or the community to assist them when transitioning home. When seniors feel helpless, they often will accept living in an care facility, when with assistance, they may be able to return to their homes. Life Care Planning is designed to help families respond to the challenges associated with long-term illness or disability of an elderly loved one.

Seniors with chronic health care needs not only have to deal with health care issues, but also with financial and legal issues.  A Life Care Planning Law Firm combines the expertise of an attorney and a licensed social worker. The elder law attorney provides services such as estate planning and public benefits qualification and the social worker locates and coordinates appropriate, high-quality care.

As advocates for seniors, Life Care Planning Law Firms protect their rights and ensure their independence and quality of life. If problems arise with care providers or with public benefit agencies, seniors and their families appreciate having a law firm on their side.

A will is an expression of your wishes or desires.  When we talk about a will, we are usually referring to your desires concerning the disposition of your property after your death.  A Living Will—a will that takes effect while you are still living—is an expression of your wishes concerning medical treatment.  The Idaho legislature recognizes “the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out even though the person is no longer able to communicate with the physician.”[1]  Idaho’s Medical Consent and Natural Death Act[2] establishes an effective means for making such a communication.

In Idaho, there are two kinds of advance directives—a living will and a durable power of attorney for health care.  A single form is used for both and can be obtained from your local hospital, attorney or the Idaho Secretary of State’s web site.  Your living will is an advance directive to your health care provider communicating your wishes for medical treatment at the end of your life.  Your durable power of attorney for health care takes effect when you are not able to communicate.  You may want to personalize your durable power of attorney for health care beyond the basic form by giving directions to your health care agent concerning the type of care you desire and your personal preferences if you become incapacitated.

Idaho also uses a POST form (Physicians Order for Scope of Treatment) to express your wishes concerning how you want to be treated from a medical perspective.  The POST form is recognized as Idaho’s Do Not Resuscitate Order. To be valid the POST must be signed by you (or your agent acting as a durable power of attorney for health care) and by your physician.  If you have a POST form you should keep a copy of it where it is immediately visible to Emergency Medical Service personnel so that they can honor your wishes.

The POST form and the living will compliment each other. Like suspenders and a belt working together to keep your pants up, a POST form and a living will work together to make sure your wishes are followed.

You may register your living will and durable power of attorney for health care and your POST at no cost in the Idaho Health Care Directive Registry located in the Idaho Secretary of State’s office.  By registering these documents your family and health care providers with internet access may view these documents in case of an emergency.  You will receive a wallet-size registration card with an individual filing number and password on it from the Secretary of State that you can keep with you.

We plan for every important event in our lives—births, weddings, education and careers.  It can be difficult to plan for our incapacity or end of life.  However, by planning for them we can assure that our wishes will be fulfilled and our loved ones will have peace knowing what to do.

If you have a question about a senior’s legal, financial or health care need, give us a call.  We’d love to talk with you.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho and is a licensed Nursing Home Administrator.