Category Archives: Senior Tips

Tangible Personal Property List

Use a tangible personal property list to clearly specify who you want to receive your personal property.

Idaho Code Section 15-2-513 expressly permits the use of a statement separate from your Will to dispose of non-business, tangible personal property upon your death. If you want to use such a separate written statement rather than itemize the disposition of tangible personal property in your Will, you should know and follow the requirements set forth below:

No duplication. The separate written statement should not include items already specifically disposed of by you in your Will.
Assets that may be disposed of by written statement. Common examples of property that may be disposed of include personal effects, jewelry, family heirlooms, furniture, antiques, art work, books, household items, sporting equipment, automobiles, etc.
Assets that may not be disposed of by written statement. A separate written statement cannot be used to dispose of money, evidence of indebtedness, documents of title, interests in real property, securities or property used in a trade or business.
Date and sign written statement. Each page of the statement should be dated and must be signed by you.
Clearly describe each item. Clearly describe each item so that it is easily identified and not confused with another similar item.
Designation of beneficiary (devisee). Each beneficiary (also referred to as a “devisee”) should be identified by his or her proper name and relationship to you. The address of the beneficiary should be added if the beneficiary is not closely related to you so that proper identification is assured.
Alternate Beneficiary. You may wish to consider providing for an alternative beneficiary if the first-named beneficiary does not survive you, although this is not necessary.
Change in designation of beneficiary or property. You may change the devisees or property designated in the separate written statement from time to time or revise or revoke the entire statement. Changes should be made only by preparing a new statement patterned after the original form. The old statement should be destroyed. Changes should never be made by alternation on the face of an executed statement; your intent will inevitably be unclear.
Retain written statement in safe place. The separate written statement should be kept in a safe place where it can be easily found, preferable with your original Will.
Notice to Personal Representative. We recommend that you notify the personal representative named in your Will regarding the location of the written statement.
Periodic review. The written statement should be reviewed periodically and kept current.

Families often fight more over mom’s wedding ring or dad’s hunting rifle than they do over the distribution of a 401K. A tangible personal property list is often overlooked, but is an important document to prevent disputes between family members when settling an estate.

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.

Medicare and You

Your responsibility to Medicare if you are involved in an accident

Winter driving conditions here in Idaho can be difficult at times and can lead to accidents. In a situation where a person on Medicare sustains injuries that are caused by someone else, Medicare becomes a secondary payer and the no-fault or liability insurance becomes the primary payer. When an individual who is covered by Medicare is injured in an accident, Medicare requires that person to notify Medicare of the accident.

While the process of obtaining treatment for injuries is the same, payment of the medical bills is very different. Medicare makes conditional payments to healthcare providers for their services, but Medicare is entitled to repayment from the third party responsible for the accident. This is the case whether the injury happens at work or in an automobile accident. If a person on Medicare recovers an insurance settlement for his injuries, Medicare will automatically have a lien against the settlement for any medical bills it has paid on behalf of the insured. Therefore, if a Medicare beneficiary receives a settlement from a primary payer, that person will need to reimburse Medicare for the amount of medical bills that Medicare paid.

For example, we know of one man who had an accident and settled with the liability insurance company for $1,500 and then had back surgery paid for by Medicare. When Medicare became aware that he had been in an accident, they sent the man a letter demanding reimbursement for the total cost of the surgery.

Consequently, if you are on Medicare and you are injured in an accident, make sure you or your attorney contacts Medicare before making any kind of settlement with an insurance company.

Battling Alzheimer’s Disease

Things you can do to improve your chances of not getting Alzheimer’s.

According to Dr. Maria Norton of Utah State University, there are at least 15 million people in the U. S. who suffer from Alzheimer’s Disease, and someone develops AD every 68 seconds or roughly every minute of the day.

At a Seminar Dr. Norton recently presented in Idaho Falls, she indicated that we can improve our chances of not getting Alzheimer’s. Like many other health conditions, there are things we can change in our lives and things we cannot. For example we can’t control our increasing age, our genes or our family history of AD. However, we can control our knowledge of the subject, our nutrition, our exercise and our stress level, to name a few. Dr. Norton hypothesized that only 1/3 of the total Alzheimer’s risk factors come from genetics, leaving 2/3 that we can control.

According to Dr. Norton, there are six behavioral domains in which we can make wise choices each day that can decrease our likelihood of getting AD. They are the following:

Healthy food choices
Physical activity
Stress management
Cognitive / mental activities
Social engagement
Sleep quality

There is a new app called “Gray Matters, “The Alzheimer’s Prevention App”, to help remind us of the importance of doing the things we can control. Studies show that this smart phone app motivated better engagement in each of the six areas mentioned above by well over 50% in each domain. You can download the app and visit the demo at graymatters.org@graymattersapp.

Quality of life is so important. When trying to avoid a disease as devastating as Alzheimer’s, doing something is always better than doing nothing.

Provide for your pet in your will or trust

“I like pigs. Dogs look up to us. Cats look down on us. Pigs treat us as equals”. Winston Churchill

If you have ever loved a pet, you understand the question that many of my clients ask: when I pass away, who will care for my pet? Pets offer companionship and bring joy into our lives, and in return we want to make sure they go to a good home.

There are several options for the placing of pets, including family members, friends and adoption programs with organizations like the Idaho Humane Society. If you plan to leave your pet with an individual, you should discuss with the prospective caretaker if they are willing to care for your pet. If they accept, you can leave your pet in your Will to that person. You may also want to leave some money or other pet care items to that person, asking the person to use the money and items to care for your pet. Your request gives guidance to the caretaker, but is nonbinding. You cannot leave money or other property directly to an animal.

A more complex and expensive method to provide for your pet is to set up a Pet Trust. Idaho Code § 15-7-601 allows for a Trust to be set up for a pet. Funds can be put into the Trust with instructions that are binding, as to how the money is to be used and how your pet is to be cared for.

If providing for your pet’s future when you are gone is important to you, consider leaving specific instructions in your Will concerning with whom you want your pet placed. This brings peace of mind, knowing your pet will be in a good home.

Intestate Succession: passing away without a Will

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.

Caregiver Stress and Burnout

Tip: Consider the benefits of attending a caregiver support group.

In my Elder Law Practice I meet regularly with families who are caring for a loved one with Alzheimer’s or dementia. The families I meet with come to me with legal, financial and healthcare problems that have arisen. I have a social worker who assesses the needs of these families, and the stress of caring for a loved one becomes very apparent.

Beginning in October, there is a new resource in Blackfoot available to caregivers. A caregiver support group is being offered for people who care for someone who suffers from Alzheimer’s. Laura Bingham, a social worker with Access Homecare and Hospice, is facilitating the group. She hopes to educate, share ideas, and support each other in a warm and welcoming atmosphere. The first session is Wednesday, October 21, 2015. It will be held at 6 p.m. at the Gables Assisted Living, located at 2815 Hunters Loop, Blackfoot, Idaho . The class will be held every 3rd Wednesday of the month from 6:00 to 7:00 p.m.

You can learn more about caregiver programs and resources at Alzheimer’s Association at www.alz.org.

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 Adults Needing Financial Help

Tip: Consider the risks of putting a son or daughter on your bank account as a joint tenant.

Putting an adult son or daughter on a bank account is a common practice of older adults who need help paying bills and managing their finances. However, having a child as a joint tenant on an account may cause the following problems:

The child sometimes withdraws money from the account for their personal use.
If a parent asks the bank to remove the child’s name from the account, the bank requires the child’s signature to have his or her name removed. This often leads to a confrontation between the parent and child, which many parents will avoid.
If there is a joint tenant on an account, and the parent passes away, the Personal Representative of the parent’s estate cannot withdraw money from or close the bank account.
Most often, when the owner of a bank account passes away, the intent of the owner is to have the remaining balance go directly to his or her estate to be divided between all the children. However, Idaho Probate Code § 15-6-104 states that when a joint tenant is added to a bank account and the owner of the account passes away, the money in the account can go to the joint tenant if he or she can prove it was a gift. This leads to all kinds of proof problems concerning the owner’s intent, and the other children are at risk of the joint tenant taking it all.
If a son or daughter is involved in a divorce or takes out bankruptcy, having their name on their parents’ account raises an issue of their ownership interest, and the money could be taken in the divorce or bankruptcy proceeding.

The easiest solution for older adults needing help with finances is for the parents to give a son or a daughter a Financial Power of Attorney (POA). With a POA, the child can assist the parents in paying bills and managing their financial affairs. The child has no ownership interest in the account and has a fiduciary duty to the parents to use the money for their benefit. The parents can revoke the Power of Attorney at any timec if a problem develops.

The parents can also set up a Pay-On-Death Agreement with the bank to pay the remaining balance in the account at their death to whomever they designate.

Remember, there are safer ways of getting help with your finances than putting your son or daughter on your bank account.

Age is a Quality of Mind

Wrinkles and gray hair are not the proof that the best of life is over.

I thought that since it was summer, it might be nice to have a tip on the lighter side. Recently I was reading a book written by Bryant S. Hinckley that had a thought about aging. It stated: “Some people are young a long time; they never seem to get old. Accomplishing this is a priceless achievement, and it is within the reach of most of us. ” An often quoted poem is entitled,

Age is a Quality of Mind
“Age is a quality of mind:
If your dreams you’ve left behind,
If hope is cold,
If you no longer look ahead,
If your ambition’s fires are dead,
Then you are old.
But if from life you take the best,
And if in life you keep the zest,
If love you hold;
No matter how the years go by,
No matter how the birthdays fly,
You are not old.”

Bryant S. Hinckley continues, saying, “The way to grow old with satisfaction and dignity is through the cultivation of our inner resources. Wrinkles and gray hair are not the proof that the best of life is finished… Most people who age before their time do so because their minds and not their muscles stiffen… We all need to cultivate kindness, human understanding, sympathy, tolerance for other people’s views, generosity and a sense of humor… These are the qualities of mind and heart that endure and enrich our lives forever. They do not diminish with the passing years. These are the panaceas for disillusionment and loneliness which so often embitter age…”

Each day can be a masterpiece if we let it. Don’t let what you can’t do keep you from doing what you can do! The popular saying, “Live, Love, Laugh” can be applied at any age. Why not start now to cultivate this frame of mind and enjoy life to the fullest?

Community Spouse Resource Allowance

Don’t impoverish your spouse if you go on Medicaid.

While meeting with a client, I learned that his father had recently gone into a long-term care facility, that his mother was still in their home and that he was spending down their money so that his father could qualify for Medicaid. I explained to my client that federal law allowed his mother to retain a large amount of their assets and that his Mom didn’t have to become impoverished for his dad to qualify for Medicaid.

Let’s review the Medicaid rules as it applies to this case. In addition to filing the Medicaid application, the husband should file a Community Spouse Resource Allowance, which allows his wife to retain certain assets.

Medicaid categorizes resources as exempt assets and countable assets. Exempt assets include the following:

Primary residence
Personal household goods
One vehicle
Prepaid funeral
IRAs
Some specific Life Insurance Policies

Countable assets include:

Cash
Savings and checking accounts
Cash value of insurance policies

In this example, in addition to the exempt assets, the wife can retain one-half of the countable assets up to $119,220. For example, if the couple has $238,440, the wife can retain one-half, which is $119,220.

To be eligible for Medicaid, the husband cannot have more the $2,000. If he has more than $2,000, he cannot give money away (except to a disabled child); however, he can use the money to pay off their debts, make repairs to their home, upgrade their car, prepay their funerals, pay legal expenses and pay for his care.

Once the husband becomes eligible for Medicaid, he will sign a Marriage Settlement Agreement and transfer all of his assets to his wife.

One final point, now that all the assets belong to the wife, if by chance she dies before the husband, all of the wife’s assets will go back to him making him ineligible for Medicaid. To avoid this, the wife, should make a Will that includes a Special Needs’ Trust for her husband. Then if the wife dies before the husband, the assets do not go to him, but are held in a trust to be used for his benefit. In this way he remains eligible for Medicaid.

Living Trust Myths

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:

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