Category Archives: Senior Tips

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.

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.

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.

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?

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.

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.

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 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.

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.

Community Spouse Deed

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.

Safe Senior Driving

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.

What is an Elder Care Coordinator?

An Elder Care Coordinator is a professional, such as a social worker, who specializes in assisting Seniors to attain the highest quality of life, given their circumstances.

An Elder Care Coordinator knows about community resources and can help families understand how long-term care services for their loved ones are accessed and funded. He or she also helps the people who work with Seniors work together as a team, avoiding costly re-hospitalizations or fragmented care.

An Elder Care Coordinator will:

Provide support, counseling and advocacy during a crisis.
Help clients and families identify care problems and assist in solving them.
Assist families in arranging in-home help or other services.
Coordinate treatment plan with different health providers.
Provide education, and offer referrals to other geriatric specialists to provide appropriate care, while conserving financial resources.
Help with transitioning of a Senior to or from a retirement complex, assisted-care living facility, or nursing home.
Understand client’s personal needs and help in a way that improves their quality of life.

In a recent newspaper article, Sean Cavanaugh, deputy administrator at the Center for Medicare was quoted as saying, “We all need care coordination. Medicare patients need it more than ever.” The article continued stating, “About two-thirds of Medicare beneficiaries have two or more chronic conditions . . . Their care is infamously fragmented.” (Washington Post, AP) The following example illustrates this:

Recently, one of our clients was receiving care from multiple doctors. When an emergency room physician treated this client following an accident, his discharge orders made it back to the attending caregiver at the facility, but were not properly incorporated into the client’s treatment plan. This left our client vulnerable in several ways. She became unresponsive due to the increase in pain medications. She also had other critical components of her health that went untreated due to a lack of follow through with the discharge orders. Our care coordinator recognized that something was wrong, resulting in a return to the emergency room.

Here is what one family member said about the benefits her family received by having a care coordinator for their sister: “Words cannot express my feelings of gratitude for the wonderful care my sister has received and the peace of mind we as her family have felt.”

A new trend is for Elder Law Attorneys to hire Care Coordinators to help meet the needs of their clients. This can make all the difference in making sure our loved ones receive the best care. As families begin their journey through the long-term care system, it is helpful for them to have a supportive and knowledgeable advocate to accompany them along the way.

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.

Exceptional Healthcare Providers

Being positive is conducive to healing.

Recently, I got a close-up look at how patients are treated by healthcare providers. While in the hospital for several days following a surgery, I reflected on how I was treated by my care team, and the impact it had on my experience. This helped me to better understand the importance of choosing the right healthcare providers for Seniors with chronic health problems, whether in their homes or in a facility.

Fortunately, all the healthcare providers I encountered aided me in the healing process and in overcoming the effects of my surgery. However, some more than others, provided needed assurance and optimism and treated me like a person, not just a name on the chart.

As care providers entered my room, there was an immediate sense of those who took a personal interest; invariably, they would address me by my name and ask a few personal questions to get to know me. Some would share a little about themselves, such as how long they had worked there or interesting things about their family, creating a warm atmosphere. When they were optimistic, it was a welcome attitude, when worries about things turning out well, were in doubt. Being positive is so conducive to healing!

So, now back to my earlier statement about the importance of healthcare providers in the lives of Seniors. Having the right care provider that fits the needs and personality of a Senior is so important. A care provider, whether he or she is a CNA, nurse, therapist or doctor, can brighten an often bleak situation by being personable, by noticing improvements and by using sincere encouragement.

When I was in a tough situation, I had a speech therapist that was like a personal trainer. She illustrated the needed exercise, cheerfully encouraged me and showed me how to achieve results. Having an exceptional care provider made all the difference!

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.