Category Archives: Senior Tips

Personal Representative’s Responsibilities

Common sense, conscientiousness and honesty are the main requirements.

If you have been asked to be a Personal Representative, you may wonder what your responsibilities are. Essentially, your job is to gather and take care of the deceased person’s assets, pay valid debts and distribute what is left to the people who will inherit it. However, before you can act, you must file a petition with the Court to probate the estate and to be named the Personal Representative. The Court will issue Testamentary Letters to you—documents that evidence your authority to act on behalf of the deceased’s estate. During the administration of the estate, you may be required to present copies of these Letters to persons with whom you transact estate business.

You may have additional duties as the Personal Representative which might include setting up a bank account for the estate, paying current bills and completing a final tax return. You may also need to cancel services such as phone contracts and utility bills and notify Social Security and pensions.

In some cases, you may want to publish a Notice to Creditors in the local newspaper. By publishing a Notice to Creditors, creditors are put on notice that they must make their claims within 4 months of the date of the publication or their claims will be barred.

After all known debts, administration expenses, and taxes have been paid or provided for, a final report or account should be prepared. Copies of the report should be made available to all persons interested in the estate.

Normally, distribution of the assets will await the closing of the estate. However, depending on such factors as the size of the estate, the needs of the beneficiaries, tax considerations and the desirability of avoiding the payment of interest on specific bequests, earlier partial distributions may be made.

Being a Personal Representative is a significant responsibility. The decedent is depending on you to settle his or her estate and to distribute the remaining assets to the persons designated. Common sense, conscientiousness and honesty are the main requirements for being the Personal Representative.

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 2018

Prenuptial Agreements

For those whose spouse has passed away and who are considering remarriage, a Prenuptial Agreement can assure that your estate will go to your children.

If your spouse has passed away and you are contemplating a second marriage, you may want to consider making a Prenuptial Agreement. With a Prenuptial Agreement and proper Wills, you can set out the duties and obligations that you and your new spouse will have upon death or divorce and assure that the property that you bring into the marriage will pass to your children.

A Prenuptial Agreement will typically include the following provisions:

A disclosure of each party’s assets and income.
A waiver of claim against each other’s assets.
How daily expenses are to be paid.
Whether the parties will file joint or individual income tax returns.
Whether the surviving spouse may continue to live in deceased spouse’s home.

If you do not have a Prenuptial Agreement or a Will, upon your death your property will pass under the intestate laws of Idaho. Idaho Code § 15-2-102 provides that the surviving spouse will receive the following share of the deceased spouse’s estate:

As to separate property if there are surviving issue (posterity), the surviving spouse will receive one-half of the separate property and the deceased spouse’s issue will receive one-half of the separate property.
As to community property—property that has been acquired during the marriage or separate property that has been comingled—allthe community property goes to the surviving spouse.

In addition, if you do not have a Prenuptial Agreement or a Will that provides otherwise, when you die your spouse has a right to receive $60,000 from your estate—a homestead allowance of $50,000 and an exempt property allowance of $10,000.

A Prenuptial Agreement entered into before marriage establishes property rights after marriage. When you have made your intentions clear and your estate plan is carried out, your property will go to those you have designated, not to someone your never intended.

April 2018

Medicaid Myths

Don’t believe everything you hear about Medicaid.

I have had several calls and questions about Medicaid that make it clear that there is a lot of misinformation about Medicaid. Here are some of the questions I fielded this past month:

“Is it true that if I am applying for Medicaid and sell my home, I have to use the proceeds of the sale to pay for my long-term care?” First, youdo nothave to sell your home. Your home does not count toward Medicaid eligibility. If you are a couple, after one spouse qualifies for Medicaid the home can be transferred to the non-Medicaid spouse, who can continue living in the home. If you are single, Medicaid allows you to sign a form that you intend to return home, if possible. This allows you to retain ownership and control of your home. However, Estate Recovery will make a claim against your estate for the costs of your care after you have passed away.

If you decide to sell you your home, Medicaid requires you to spend down your cash assets to $2,000 for a single person or $3,000 for a couple if both are on Medicaid. But the proceeds of the sale can be spent to benefit you personally. For example, you can pay off debts, buy a new car, pay for eye care, prepay funeral expenses, pay for travel, pay for dental and medical expenses not covered by Medicare or Medicaid, or for any other expenditures that benefit you. The proceeds of the sale of your house do not have to be used to pay for your care. One final point, you cannot give your money away. There is a 5-year lookback for any money that is given as a gift.

“Is it true that if I set up a Miller Trust, that I can use the money in the trust to pay medical bills or upgrade my room to a private room?” Youcannotuse the money in a Miller Trust to pay medical bills or upgrade a room. A Miller Trust helps you qualify for Medicaid when your monthly income exceeds the maximum limit allowed by Medicaid, which is $2270 per month in 2018. If your income exceeds that amount, you can use a Miller Trust, to qualify for Medicaid, but the money that goes into the Miller Trust is used to pay for your share of costs at the facility. Any money left in the trust at your death goes back to Medicaid.

Another trust, known as a Special Needs Trust, is a trust set up to supplement the needs of a person who is disabled and receiving Medicaid. If a person has a Special Needs Trust, it can be used to pay medical bills or upgrade a room. Apparently, the person who asked the question was confusing a Miller Trust and Special Needs Trust. These are different trusts that are used in different situations.

One last myth to dispel—If you are married, and only one spouse is going on Medicaid, the well spouse can keep half of the cash assets up to $123,600, and the other spouse can still qualify for Medicaid.

These Medicaid Myths that are passed around can cause you to spend down more cash than you need to. It is important to have accurate information when making decisions about Medicaid. The costs of long-term care represent a significant financial risk. Understanding how Medicaid works will allow you to access government benefits in the least, financially-disruptive manner possible.

March 2018

Check Investment and Insurance Beneficiaries

Sometimes Probate is required even though you tried to avoid it.

Draw a circle; consider the circle to represent everything you own—your house, car, recreational vehicles, bank accounts, investments, insurance policies, IRAs, retirement accounts, etc. The property within the circle is known as your estate.

There are many ways property in your estate may be transferred to those you designate. For example, you can sign a Pay-on-Death request with your financial institution making your account payable to one or more payees at your death. You can hold property with someone else as joint property or community property with a right of survivorship, so that upon the death of one party, the property automatically belongs to the surviving party. Additionally, your estate can be probated to transfer your property to the persons designated in your Will.

Sometimes people go to great lengths in their planning to avoid probate. Then, after they have passed away, the family discovers that their loved one designated their Estate as the beneficiary or failed to designate a beneficiary, therefore, the death benefit is paid to the Estate.Insurance companies will not give money to the Estate without an order from the Court. Therefore, the family is frustrated when they find out that after all their loved one’s efforts, a petition for probate will need to be filed and a personal representative appointed to receive the death benefit from the insurance company.

Working with insurance companies can be confusing, frustrating and time consuming; however, when you are doing your estate planning it is wise to review your beneficiary designations on insurance policies and investments to avoid this problem.

February 2018

Determining Capacity

It’s better to sign powers of attorney before you have a crises.

Here is a story frequently recounted to me by families: Mom and dad have lived a full life together, but recently things have started to change. Dad has been diagnosed in the early stages of Dementia and mom has developed some physical limitations. Together they manage, but alone they are not able to care for themselves. This recently became apparent when mom got pneumonia and went to the hospital, and dad could not remain at home alone.

Wondering what to do to help their parents, adult children often come to me for advice on how to prepare their parents for the future. I always ask if their parents have financial and healthcare powers of attorney, knowing how important it is for them to have someone who can step in and help them if they need. This is even more important if they are considering facility placement or a Medicaid application.

Often, learning that they do not have powers of attorney, I ask if their parents are competent, or if they have the capacity to understand and sign documents. This question opens a can of worms, because the children don’t know the answer, and I am forced into making a capacity determination—something I try to avoid when possible. If only the parents had planned for this possibility and prepared the documents when they were competent, thinking clearly and knew what they wanted. Needless to say, a person should make these decisions when they are at their best, not at their worst.

As a lawyer, sometimes I must assess the capacity of the person needing to sign documents. Capacity is determined in the areas of their cognitive, emotional and behavioral abilities. Possible signs of cognitive incapacity include short term memory loss, communication problems, comprehension problems, lacking the capacity to understand multiple alternatives, problems with mathematical calculations, and disorientation. Emotional signs of incapacity include significant emotional distress and emotional inappropriateness. And behavioral signs include delusions, hallucinations or poor grooming and hygiene. Knowing the person’s abilities and deficits in all these areas, rounds out the total picture. It is not easy to determine when someone has crossed the line and is incapacitated.

Unfortunately, it is in this crises stage that I see many of my clients, and I must make the determination if the person has the capacity and understanding to sign documents, which hands their right to make decisions over to someone else. This decision becomes increasingly difficult if the children of the parents have differing opinions about what is best. In that case, I must also make the determination if any of the children are exerting undue influence on the parent.

In conclusion, Seniors lives take many turns. Events sometimes change one’s ability to live life in the way that he or she had hoped for. It is better to prepare powers of attorney early when one is competent, and there will less chance that the decisions made will be challenged on the grounds of incapacity.

January 2018

Take Joy!

The following is a quote my mother gave me when I was a young adult. She recognized the obligation and necessity of finding our own joy, peace and happiness. I had a local artist do the artwork around the quote; I then gave it back to my mother for Christmas. I hope you enjoy it as much as we have.

As we celebrate this holiday season and contemplate the beginning of a new year, let us find joy and peace and help those around us to find it as well.

We wish you a joyful holiday season!

December 2017

Maintaining Financial Boundaries

By setting boundaries, harmony in the family can be preserved.

In my Elder Law practice, I counsel regularly with older adults and their children. Some of their stories and challenges are unique, but some I hear over and over again. When this happens, it seems worth writing a tip about it.

As adults age and start to require assistance in paying bills and making financial decisions, often a well-meaning adult child will come alongside of his or her parents to help them in financial matters. For example, an adult son may start by writing checks and have dad sign them. As mom needs help with the groceries, an adult daughter may pick up a few things for her and pay for mom’s groceries along with her own. Somewhere along the way, boundaries are blurred, and the well-meaning adult child begins to have a sense of ownership and entitlement to dad or mom’s property.

Other times, an adult child, who never really figured things out for himself or herself, starts to rely on mom—her fixed income and limited assets—for his or her support. Moms are especially easy prey in these situations. Their love for their children knows no boundaries, and they sometimes willingly sign over the farm and anything else that may be asked for. Mom’s happiness and even her daily needs are now inextricably tied to her children’s choices concerning her.

The problems that both scenarios create are endless. If the adult son or daughter has paid for things out of their own pocket, they may feel they should be compensated for past purchases or even services provided.

When other siblings learn of financial exploitation of a parent, family relationships are fractured, which is the last thing mom and dad want. Also, Medicaid eligibility, which funds assisted-living care, can be jeopardized if parents have given away their property. Wills can become meaningless, if in the parents’ lifetime they give their property to a child. I could go on, but I think you get the picture.

So, what is the solution? Maintaining good boundaries is essential when helping an aging parent. With regard to finances, maintaining boundaries starts by approaching the task with the attitude that a parent’s property is their sole property and should be used solely for their benefit. That’s not to say that a parent cannot use discretion to purchase gifts for children and grandchildren. But, if the gifts become excessive or lopsided between family members, that can be a red flag, and it can become a breeding ground for trouble and discontent among siblings.

The next step is putting in place an accountability system for the person who is assisting the parent. It can be a simple system of saving receipts for the groceries and writing a check to be reimbursed for the amount of the purchase. A little accounting can go a long way to prevent suspicion or misunderstandings.

The third step in maintaining good boundaries is transparency with other family members. As a family, talk with parents about how they would like to be helped, put a plan in place that is understood by the family, and as the plan is carried out, routinely update family members with information. This way, harmony can be preserved, and parents can have the dignity and respect that they deserve.

Thomas W. Packer

November 2017

Wills and Probate

In Idaho, probating a Will is a simple process.

Probate of a Will is generally necessary when title to property must be transferred at a person’s death. Probate allows for supervision of the estate by the Court, gives notice to heirs of the proceedings, and provides an opportunity to settle creditor claims.

Probate can be informal or formal. In Idaho, informal probate is a simple and efficient process that does not require Court hearings or judicial supervision. The estate can be distributed in a few weeks to a few months depending on the assets, creditors and heirs of the estate.

There is a 5-day waiting period after a person has passed away before an application for probate can be filed with the Court and the Personal Representative appointed. Once appointed, the Personal Representative inventories the property of the estate, identifies and pays creditors and then distributes the money and property in the estate according to the Will.

Formal probate involves a judge and is recommended when the Will is being contested. Will contests are usually raised for the following reasons: lack of testamentary capacity, undue influence, failure to witness or execute the Will properly or ambiguity in the Will concerning the decedent’s wishes. When writing a Will it is important to recognize and avoid these problems.

Recently, I had an adult child call me about his mother’s Will. He felt that he would be treated unfairly in the Will. He demanded that his mother change the Will and threatened to challenge the Will if she didn’t disrupting the family peace. This may not have raised to the level of undue influence, but it was certainly inappropriate.

Another client brought me his parent’s Wills to be probated after his parents had passed away. The Wills had been printed off the internet and signed. As I reviewed them, I determined that the Wills had not been properly witnessed or notarized, leaving their validity open to challenge.

You work a lifetime to accumulate your estate. You should take great care when writing your Will and seek expert advice when appropriate. The Will contests that I have done in my career have involved Wills drafted by individuals, their friends or their family.

October 2017

Jointly Held Property

If you hold title to your home as community property, your home does not automatically transfer to you at your spouse’s death.

Joint tenancy lets two or more persons—the joint tenants—to own property with a right of survivorship. This means that when one of the joint tenants dies, the surviving joint tenant automatically receives the deceased tenant’s share of the property. For example, in Idaho many people own vehicles as joint tenants. By using the magic word or instead of and when they list vehicle owner’s names on the title, they create a joint tenancy. Upon the death of one of the joint tenants, the surviving joint tenant simply signs a request for a new title at the assessor’s office to have the title to the vehicle transferred into his or her sole name.

Many couples in Idaho falsely assume that their home will also transfer automatically to the surviving spouse. But, Idaho is a community property state, and this is not the way community property laws work. There is, however, a way to hold title to community property so that it does transfer automatically. The magic words are found in Idaho Code §15-6-401. The deed transferring the property must include these words: “to be an estate in community property with right of survivorship.” If a couple wonders how they hold the title to their home, they should check their deed for these words. If these words are not in the deed, they can prepare a new deed to themselves using these words. When a couple holds title to their home as community property with a right of survivorship, they will avoid probate on the death of the first spouse. All the surviving spouse needs to do to transfer the title to the surviving spouse is to record a death certificate.

September 2017

Involuntary Discharge

Understanding Facilities Involuntary Transfers/Discharges

Facilities must meet certain conditions for involuntary discharge.

Do you have a loved one in a facility? Most of the time facilities provide compassionate, quality care to their residents. However, occasionally facilities will involuntarily discharge or transfer a resident against their wishes. A facility may only transfer or discharge the resident under the following conditions:

It is necessary for the resident’s welfare and the resident’s needs cannot be met in the facility;
The resident’s health has improved sufficiently so the resident no longer needs the services provided;
The safety of individuals in the facility is endangered;
The health of individuals in the facility would otherwise be endangered;
The resident has failed, after reasonable and appropriate notice, to ensure payment for a stay at the facility.
If the facility is going out of business.

Some examples of when it would be appropriate to transfer a resident are if the resident could transfer to lower level care, the resident is continuing to physically abuse another resident, a resident persists in smoking in the facility, or a private-pay resident promises to pay but doesn’t.

Examples of situations that would not meet the criteria for discharge are if the resident aimlessly wanders, the resident is making loud sounds, the resident’s refusal for treatment as long as it doesn’t endanger another resident, or conversion from a private pay rate to a payment at the Medicaid rate. If a resident is deemed to be “difficult” that is not reason enough for a facility to seek discharge.

If there has been a significant change in the resident but it is not an emergency, the facility must conduct an assessment to determine if a new care plan would allow the facility to meet the resident’s needs.

The resident’s record must document the facility’s efforts to resolve the situation before the decision to transfer is made. In addition, the facility must give a 30-day written notice to the resident of its intent to transfer, which includes a statement that the resident has the right to appeal the action to the State, and the facility must also include the name, address and phone number of the agency responsible for the advocacy of the resident.

Facilities exist to care for people with physical and cognitive problems. Problems present opportunities for finding solutions that allow facilities and residents to work together, and for facilities to do better for the communities they serve.

August 2017