A simple and inexpensive way to create a Trust.

There is a relatively unknown and unused law in Idaho known as the Uniform Custodial Trust Act. Setting up a trust under this Act provides for a more structured setting for managing assets than can be achieved by simply naming an agent to manage property under a financial power of attorney. Under the trust, you can track how the trustee is managing your property and direct him or her in the administration of the trust.

In some circumstances, this additional tool may be helpful in planning for your future. For instance, if you had concerns about your money being used to take care of you, you could put some money into a trust with specific instructions that the money is to be used for whatever needs you might have if you become incapacitated.

The comments to the Act state: “The objective of the statute is to provide a simple trust that is uncomplicated in its creation, administration, and termination.”

Having such a trust may avoid the necessity of a conservatorship if you become incapacitated. It also allows a parent to set up a trust for a disabled child.

Idaho Code §68-1318 provides a form that can be used to create a custodial trust. Signing the form and delivering it to the custodial trustee creates the custodial trust. You may want to seek legal advice to explain how custodial trusts work and how to set one up correctly.

If you have set up a trust for your own benefit, you are the beneficiary of the trust. As the beneficiary, you may terminate the custodial trust at any time; you may receive so much of the income and property of the trust that you request; and you may direct the investments and management of the property in the trust as long as you are not incapacitated. If you become incapacitated, the trustee will manage the property in the trust subject to the terms you have set up, and follow “the standard of care that would be observed by a prudent person dealing with the property of another.”

The Act outlines the general duties and powers of the trustee in managing trust property. The trustee keeps records of all transactions with respect to the trust property, provides information to the beneficiary upon request and makes an annual accounting.

Idaho Code § 68-1317 provides that on the termination of the trust, the unspent assets go to the beneficiary, to the estate of the beneficiary, or to the person or entity designated by the deceased beneficiary or designated in the original document creating the trust.

Thus, we can see that the Custodial Trust Act provides a simple way to set up a trust to manage property, which is especially useful in the event of incapacity. If you are considering a trust, take a look at the Custodial Trust Act.

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.

June 2020

When you prepare documents nominating individuals to serve in these capacities, make sure to understand their duties and their authority.

When you nominate a person to act as your trustee, personal representative, or an agent under a power of attorney, care should be taken to place the right person in the right position that fits your specific situation. Individuals serving in these capacities make financial and healthcare decisions for you that are in your best interest. Understanding their roles, will help you avoid problems down the road.

You may wonder what authority you are giving to your agents to act on your behalf and what their specific duties are. First, these titles are not interchangeable—each has a specific role in a specific setting. If you have set up a trust, you can be the trustee of the trust or you can name another person to be the trustee. A trustee is the person who administers and carries out the provisions of the trust. If you have written a Will, your personal representative is the person you have nominated in your Will to settle and distribute your estate after you die. However, your personal representative has no authority to act, until he or she makes an application to Probate the Will and is appointed to be the personal representative by the Court.

A financial power of attorney is a document that gives your agent authority to make a wide range of financial and property decisions for you. It is a good idea to regularly review, update, and keep your power of attorney current. Banks and title companies are reluctant to accept powers of attorney that are over more than a few years old. Powers of attorney terminate when you die. Your agent can no longer act after your death to access bank accounts, etc.

Next, a healthcare power of attorney gives your agent the authority to make medical and healthcare decisions for you. A healthcare power of attorney becomes effective only if you are unable to communicate your wishes to your providers.

Here are a few examples of problems that can arise when doing this kind of planning:

Example 1: A person creates a trust, puts all her property in the trust and 30 years goes by. When she starts to decline, she names her son as her agent under a financial power of attorney. The son tries to pay her bills but discovers that he cannot access her bank account because it is in the trust, and he has no authority under the power of attorney to access the trust bank account.

Example 2: A parent creates a trust and decides not to put her bank account in the trust. When she starts to decline, the successor trustee of her trust steps in to help manage her property and pay her bills. The successor trustee discovers that the bank account was not put in the trust, so he can’t access the funds because it is outside the trust. Again, no one had authority to access the bank account or pay bills.

Example 3: A parent names her son to act as her agent under a springing power of attorney, which means that it will become effective upon some future event, usually the person’s incapacity. Per the terms of the power of attorney, the parent’s incapacity is to be determined by two doctors who would examine her and make a written statement that she is incapacitated. It can take several weeks to months to have the doctors examine a person and sign an incapacity form. In the meantime, no one can pay the bills. (I tend to discourage springing powers of attorney, unless there is a good reason to create one.)

Thus we can see, to avoid these kinds of outcomes, it is important to set up your legal documents in the way that will accomplish your specific goals. Having an attorney explain what your best options are, in the long run, can save you time and help you avoid costly mistakes.

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.

May 2020

Be a vigilant, educated and informed consumer.

During uncertain times, we are vulnerable to those who would use high emotion and conflicting information to take advantage of others. Misinformation about COVID-19 virus treatments and cures abound, and many Americans have recently received stimulus payments that may cause others to ask them for cash or donations. We can all be easy targets if we are not equipped with information.

Here are several points to remember:

• The government will never call you, text you or email you to ask for your Social Security number, bank account, or credit card number. Do not give information to anyone that says they are requiring your information related to the COVID-19 economic stimulus plan or any other program.
• No vaccination or cure is currently available for COVID-19. Some people are using people’s fears of contracting the virus to peddle unproven, and sometimes dangerous, remedies. Be wary of anyone who contacts you to sell you these products or uses terms such as “FDA Approved” treatment options. Talk with your doctor before pursuing any virus-related claim.
• Charities need donations during this time, but dishonest individuals may take advantage of people’s goodwill and pose as legitimate charitable organizations. It is best to reach out to organizations you trust and have worked with in the past if you would like to donate money.
• Investment opportunities are another common area that scammers will target. Be aware of investments related to buying medical technologies or coronavirus treatments/cures. Verify business listings and speak with your financial advisor before making any investment decisions.
• Never give any personal information via text such as Social Security Number.

Your medical, financial, and legal wellbeing remains paramount during this time. Please contact us, your healthcare provider, and/or your financial advisor as you navigate your current situation. Reliable information can also be found at www.ftc.gov, www.coronavirus.gov and www.coronavirus.idaho.gov.

A Special Note on Stimulus Payments and Medicaid: If you or a loved one is receiving Medicaid and also received a stimulus payment, please contact us if you have questions about how this payment affects their Medicaid eligibility. The payment does not count as income and may be excluded from asset limits under certain circumstances.

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.

April 2020

It’s important to get along and be fair after a loved one passes away.

When a loved one passes away, families are faced with the task of settling the Estate. If the decedent did not have a Will, the property in the Estate passes Intestate—or without a Will—according to the laws of the state. If the decedent had a Will, the property passes according to the terms of the Will. The person nominated in the Will applies to the court to be appointed the Personal Representative. When appointed, he or she has the following duties: secure and inventory the property in the estate, distribute items listed on the Tangible Personal Property List, identify any outstanding obligations or debts that need to be paid and distribute the remaining property to the heirs, or those named in the Will.

Even with the directions that our loved one has left in his or her Will, families often come together to make decisions on how to settle the Estate. When a family comes together to wind up their loved ones’ Estate, the meeting may be unfocused and unproductive due to a lack of planning and unclear objectives. Things may not go well due to haphazard thinking, with discussions proceeding in a ”grasshopper” fashion, jumping from topic to topic. Participants come into the meeting with different values, objectives and abilities. All of this can lead to an unproductive meeting, resulting in conflict between the participants. So, a strategy is needed for these meetings to bring about collaboration, better focus, fewer arguments and better results. Let me suggest some ideas for these meetings that will help families work together and foster greater collaboration.

1. Include everyone. Give advance notice of the meeting and all members should be present if possible, or included by a conference call!
2. Have a Facilitator. Choose one member of the group to be the facilitator of the meeting. Typically, this would be the Personal Representative of the Will or the Trustee of the Trust.
3. Have an agenda. Make and give all the members an agenda of the topics to be discussed at the meeting. Members can give topics they want to discuss to the facilitator prior to the meeting.
4. Set ground rules. The facilitator should begin the meeting by reviewing the objectives of the meeting and establishing the ground rules—for example: how will decisions be made. It is important that everyone feels safe to talk and express their opinions.
5. Follow the agenda. The facilitator should announce the topic to be discussed and ask members of the group if they would like to express their opinion. Caution! This is a time for discussion to get everyone’s opinion out on the table. No decisions should be made at this part of the meeting, and all ideas should be considered.
6. Make a decision. If the group has reached a consensus, the facilitator may state his or her understanding and ask the group if they agree. The facilitator could also ask the members of the group to suggest a course of action to take. If there is not unanimity among the members, the facilitator should call for a vote. Some decisions may be made by majority vote, while others would require a unanimous vote. For example, to change the distribution provisions in a Will or Trust would require the unanimous consent of all the affected parties. Copies of the relevant provision of the Will or Trust should be provided to all the members of the group.

Families should carefully decide how personal property with sentimental value is divided. Some families place a number on each item of property and then have the members draw a number. Others have each person list their top 2 choices and then work out a division based on those preferences. If no decisions are made and the meeting is adjourned, no one should take action on what they “thought” had been decided or what “they think is in the best interest” of the group.

1. Decide the next action. Once a decision has been made, decide the next action to take to achieve the desired results, who is responsible to take the action and when it should be finished.
2. Keep minutes. It may help to record the meeting in case there is a disagreement as to what was decided. In any event, minutes should be kept of the decisions made and the actions to be taken and distributed to the members of the group.

There will need to be follow-up and subsequent meetings may need to be held. But by proceeding in a structured fashion as outlined above, there will be less misunderstanding, greater harmony and a greater likelihood that the group will work together productively, and the desired results will be achieved.

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.

March 2020

Choosing to act now and plan for your future is a “No Brainer!”

As you grow older, it makes sense to take stock of your life and consider what challenges you might face in the future and how you can prepare for them. You know what you want your future to be. By acting now, you can avoid many of the complications that come into people’s lives when they fail to plan.

Here are a few questions that you may want to consider: Who will make financial decisions for me if I become incapacitated? If I am unable to communicate, who will make my medical decisions? Who will take care of my estate and how will I pass my property on to my loved ones? Questions like these—and many more— can be resolved by getting a few documents in place.

There are two documents that authorize someone else to act on your behalf during your lifetime. A Durable Power of Attorney for Finances appoints an agent to act for you in financial matters, and a Healthcare Power of Attorney appoints an agent to make medical decisions for you if you cannot communicate. I have often seen people delay getting these documents. After they have become incapacitated, their family members want to know what they can do so that the family member can act on their behalf, i.e. pay the bills, apply for Medicaid, make healthcare decisions etc. Sadly, often there is not a lot that can be done short of applying for a Guardian or Conservator through the Court, which can be costly.

A Will or a Trust is a document that you can put in place to appoint a representative to handle your affairs after you pass away and to direct to whom you want your estate to be given to. If you die without these documents in place, the laws of the state of Idaho will determine who will be your Personal Representative and to whom your estate will go.

Here is a sampling, from my experience, of things you should think about that will avoid future problems:

• A couple can deed their home, held as community property, back to themselves as “community property with a right of survivorship”. By doing this, when one spouse dies, the home passes to the other spouse without having to probate.
• Couples who live together without getting married, need to have a Will. The law in Idaho is that if one of them dies without a Will, the other partner will inherit nothing, since they are not legally married.
• Couples who marry a second time later in life, often commingle their assets and place the new spouses’ name on the title to their property. When they do this, they make their property subject to the new spouse’s debts and creditor claims. Additionally, if a married person dies without a Will in Idaho, the surviving spouse inherits all the community property and half of the separate property. Also, the surviving spouse can claim a homestead allowance of $50,000 and an exempt property allowance of $10,000 from the estate of the deceased spouse. If these results are not the couple’s intent, or if they prefer their property to go to their children, they should sign a Prenuptial Agreement and keep their property separate.
• Many people go years without checking their insurance policies, investment accounts, IRA’s and 401K’s to make sure their Beneficiary designations are correct. Sometimes they are surprised to find that an ex-spouse or others are named as Beneficiaries that do not reflect their current wishes.
• If you have minor children, you should designate in your Will who you want to serve as the guardian of your children. If an accident, unforeseen illness or unexpected death occurs, and you have not nominated someone to serve as guardian, fighting among family members over who is to be guardian sometimes occurs, causing more stress on the already upset child. I should note that a minor, 14 years of age or older, has the legal right to object to a parental nomination of a guardian and nominate their own guardian.

In conclusion, when you are healthy and doing fine is the time you should be planning who would act for you if you unexpectedly became incapacitated and what you want to happen with your estate when you pass away. It makes sense to put legal documents in place to take care of these things while you still can.

Tom Packer is an Elder Law Attorney serving all Southeast Idaho. 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.

February 2020

Having a plan for the vacation home helps avoid problems in the future.

Family vacation homes evoke memories of going for a canoe ride on a lake, going for a walk along the beach or roasting marshmallows around a campfire—time spent together bonding as a family. However, when you have a vacation home, there is a need for careful planning, or it can become a problem with the potential to create divisions between family members.

The purpose of this Senior Tip is to discuss the different types of ownership available for family vacation homes. Future tips will address some of the pros and cons related to ownership of vacation homes.

If the family vacation home has been deeded to the children by the parents or transferred by Will or Trust, the children most likely own the property as tenants in common. Here are a few things you should know about this type of ownership: each tenant in common owns an undivided interest in the property; each tenant has a right of partition—which means each has a right to force the property to be divided or sold; each tenant can transfer his or her interest to a third party by deed or to a spouse or child in a Will; and a tenant in common has no legal obligation to pay rent or reimburse other tenants for the use of the vacation home.

Joint tenancy is another form of joint ownership. All the above rules for tenants in common apply to joint tenancy, but joint tenancy has a right of survivorship—the final survivor of all the original tenants will become the sole owner of the property. This can surprise family members in the future, when they learn that their family’s ownership in the vacation home ended on the death of their parent.

Family vacation homes are sometimes owned by Revocable or Irrevocable Trusts. The management of the vacation home and the eventual distribution of the home when it is sold is set out in the terms of the Trust. The Trustee of the Trust has the duty to manage the vacation home according to the terms of the Trust.

The final type of ownership is a Limited Liability Company (LLC). An LLC is formed by filing Articles of Incorporation with the Secretary of State’s office. This is a one-page form that lists the names and addresses of the members and the Registered Agent. In Idaho there is a $100 filing fee. Once the LLC is set up, the vacation home is deeded to the LLC. The advantage of a Limited Liability Company is that it limits the liability of the owners and is taxed like a partnership.

Limited Liability Companies are governed by an Operating Agreement that lays out how the vacation home will be managed, how a member’s interest can be sold and how the LLC will eventually be dissolved. For example, the Operating Agreement could state that the family would keep the vacation home for a certain number of years and then sell it, or it could state that it is to be sold on an event like when the first of the original members dies. Understanding and reaching an agreement on the terms of the Operating Agreement may take time and effort but resolving issues up front will avoid problems later.

The vacation home is a place where families meet together and enjoy good times; however, as circumstances change, it’s wise to have a plan in place to make sure it continues to be something that brings the family together.

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.

December 2019

How do I transfer the title of a vehicle of a person who has passed away?

The question—How do I transfer the title of a vehicle of a person who has passed away? —is frequently asked. If the estate of the person who has passed away is probated, the Personal Representative of the estate can sign and transfer the title to the vehicle by providing the Department of Transportation with a copy of his or her Letters Testamentary or Letters of Administration that have been issued by the Court. If the vehicle was held in a trust, the Trustee of the trust has the authority to transfer the title.

But what do you do if the deceased person had a small estate that was not probated, so there is no Personal Representative to sign the title? In this case, the Idaho Department of Transportation’s website has an Affidavit of Inheritance form that can be printed and filled out by a priority heir and filed with the application for a new Idaho Certificate of Title on the vehicle.

Attached below is the Transportation Department’s Affidavit of Inheritance. If you need assistance with understanding more about this process, we are here to help.

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.

November 2019

An Ethical Will may be the most important thing you leave.

An Ethical Will is not a legal document; it is an expression of who you are, how you feel and what is important to you. A traditional will is used to pass on your assets. An Ethical Will is used to pass on your values. The stories you tell and the values you share will help your family and friends remember the person that you are. Take time to write about what is important to you and something you learned from grandparents, parents, spouse, children and others. Share what you are grateful for and what your hopes are for the future of your loved ones. Here are some examples of topics you could address in an Ethical Will:

• My life Experiences
• The importance of family
• Religion / Spirituality
• Learning from mistakes
• Being honest, truthful and sincere
• Giving and receiving
• The importance of learning and knowledge
• Reflections on how you coped with difficult situations
• Doing good and avoiding evil
• Lessons learned in Life
• The importance of humor and what made you laugh
• Important relationships
• Your top ten______(ie: books, songs, vacations…)
• What did you do for fun and what brought you joy

In conclusion, an Ethical Will can take the form of a letter written to one’s own children or grandchildren, or it could be a longer, personal history with stories, experiences and wisdom for future generations. In many ways an Ethical Will could be the most important document that you leave your loved ones.

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.

October 2019