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.

The other day I got a call from a daughter whose mother had fallen and broken her leg.  She explained that her mother had been declining both physically and mentally for several months.  Friends had advised the daughter to get a power of attorney.  The daughter asked me, “What is a power of attorney and do I need one?”  This question illustrates the fact that a senior who has a health problem has a financial and a legal problem too.  If a senior becomes incapacitated, who will make decisions and act for the senior in his or her financial and business matters?

A power of attorney is a document that evidences the authority of one person to act for another, known as an agency relationship.  Using a power of attorney, you (the principal) grant legal rights and powers to another (the agent or attorney-in-fact.)  Your agent stands in your shoes and can make financial decisions for you.  For individuals coping with dementia, this type of financial assistance is essential.  However, before executing a power of attorney you should know these important facts:

• A power of attorney authorizes your agent to make decisions concerning your property. Your agent can do whatever you may do—withdraw funds from bank accounts, trade stock, pay bills, cash checks, deed property—unless limited in the power of attorney.

• The power of attorney does not authorize your agent to make health care decisions for you.

• Unless a power of attorney is springing—taking effect only if you become incapacitated—it takes effect as soon as it is signed.

• You should select someone you trust to serve as your agent. Your agent’s authority will continue until your death unless you revoke the power of attorney or your agent resigns.

• Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

• You may revoke the power of attorney at any time by sending your agent a letter that the power of attorney is revoked

• The law governing powers of attorney is explained in the Uniform Power of Attorney Act, chapter 12, title 15, Idaho Code.

In addition to making a power of attorney for financial matters, you should also make a living will and durable power of attorney for health care.  With these two documents, many times the need for a guardianship/conservatorship can be avoided in case of incapacity.  In next month’s tip we will discuss living wills and durable power of attorney for health care.

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

Visit www.packereldercarelaw.com.

Last month, we talked about giving your home to your children during your life time.  This month we will discuss property transfers that occur after death.

The following is a brief outline of the some of the methods used to transfer property after death:

1. Life Estate Deed: A deed retaining a life estate allows you to convey your ownership interest in your home to your children, but retain control of your home until you pass away.
2. Community Property Right of Survivorship: If a deed declares that your home is community property with a right of survivorship, your home will go to the surviving spouse without having to go through probate.
3. Revocable Living Trust: If you transfer your home to a trust, it is held by the trustee for the benefit of another.  When you pass away, the terms of the trust determine to whom the property will be given.
4. Will: A will is the legal expression of your desires as to the disposition of property after your death.  Your personal representative will transfer your home to whomever you have designated in your will.
5. Intestate Succession: If you have not done anything to transfer your home before your death, the Idaho Uniform Probate Code will designate to whom your home will be given.
6. Probate: Probate is the legal process whereby a personal representative is named and your property is gathered and re-distributed under the direction of the courts. Probate only applies to wills and intestate succession.
7. Affidavit of Heirship: If you have not used any of the above methods to transfer your home before your death; after three years, your heirs can record an affidavit of heirship, which will transfer the property to them.

These methods have specific rules that must be followed to accomplish the transfer of your home.  You may

want to seek the advice of an attorney to help choose the method that will be best for your situation.

The content here is not intended to be legal advice.  If you have a specific question, you should consult with an attorney.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho.  As a Life Care Planning law firm, the Elder Care Practice of Tom Packer offers a holistic solution for families struggling with the demands of an elderly loved one’s care.

Home Sweet Home

For most of us, our home is our biggest investment and our most valuable asset.  But, a home is more than just a number on a ledger sheet.  Within the walls of our homes, our families have lived, loved and learned the lessons of life.  Seniors frequently want to leave their homes to their families.

When is the best time to transfer the home to the family:  during life or after death?  Each transfer has specific rules and consequences that are important to understand.  Today’s Tip will discuss life-time transfers; Augusts’ tip will discuss transfers that take place after death.

A recorded gift deed will transfer the title of your home to your family.  The following are some of the consequences of transferring your home during your lifetime:

ADVANTAGES:

• Your family will not have to file for probate to obtain the title to your home.

DISADVANTAGES:

• Once your children own the property, they are in complete control—they can sell or mortgage your property without your permission.
• If your children are faced with bankruptcy or divorce, your home could be used to satisfy their creditors or be divided in their divorce.
• You will lose your homestead exemption, and your property taxes will increase.
• After gifting your home, you will be ineligible for Medicaid for 5 years unless your children reconvey your home back to you.
• When your family sells your home after you are gone, they will have to pay capital gains tax. If your property has appreciated in value, this tax could be substantial.

Wills, trusts and nonprobate transfers are used to transfer a home after death.  The consequences of using these methods will be the subject of our next Senior Tip.

The content here is not intended to be legal advice.  If you have a specific question, you should consult with an attorney.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho.  As a Life Care Planning law firm, the Elder Care Practice of Tom Packer offers a holistic solution for families struggling with the demands of an elderly loved one’s care.