Category Archives: Senior Tips

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.

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.

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

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.

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.