Author Archives: Tom Packer

Understanding the Annual Enrollment Period for Medicare

It’s that time of year! Understand your options and plan choices!

The annual Medicare Open Enrollment period is upon us! During open enrollment, individuals can make changes to their Medicare Part D prescription drug plans, and also change or enroll in Medicare Advantage plans.

This annual open enrollment period lasts from October 15^th to December 7^th and any changes you make will be reflected starting in January 2020. For example, if you decide to change your prescription drug plan during open enrollment, the new plan will be effective on January 1, 2020.

Why might you want to make a change to your prescription drug plan or Medicare Advantage plan? Some people choose to change plans if they have high prescription drug costs with prescriptions that are not covered under their current Part D plan’s formulary (the plan’s list of covered drugs). Some people also may change plans if they are paying a high monthly premium for their plan, but have few medications and may be able to enroll in a plan with a lower monthly premium. Still others may change a Medicare Advantage plan if they have been dissatisfied with their current plan.

What if you are satisfied with your current coverage? If you are already enrolled in a Medicare Part D prescription plan or a Medicare Advantage plan and you are satisfied with your coverage, you do not need to do anything during open enrollment. Your coverage will automatically enroll for the coming year. Just remember, many plans will make changes to their coverage each year, so it is still a good idea to review your plan information.

Sometimes plans will discontinue service in your area and you may receive a non-renewal notice from the plan. If this occurs, or if you simply want to review your options, contact your local SHIBA office (1-800-247-4422 – SHIBA Medicare Helpline), your insurance agent, or go online to www.medicare.gov to review your plan options and choose a different plan that meets your needs.

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.

September 2019

Trustee’s Duties

Always act in the best interest of the Beneficiaries, not your own!

If you have been named the Trustee of a Revocable Living Trust, there are a few things you should know. As Trustee, you have a fiduciary duty to the Beneficiaries of the Trust. In other words, you should always act expeditiously for the benefit of the Beneficiaries. You should avoid any conflicts of interest, such as using the trust assets to benefit yourself, borrowing money from the trust, placing money in an account you own or investing trust money in your own company. As incredible as it may seem, newspapers are full of such stories.

As the Trustee, you have a duty to openly and regularly communicate with the Beneficiaries and not withhold information from them. Here are some things Beneficiaries should know about:

How money in the Trust is invested
What are the Trust assets and liabilities
Any sales of the assets/property in the Trust
Any expenses paid for advisers, attorneys, accountants, real estate agents, etc.

You will need to keep detailed and accurate records so that you can provide an accounting to the Beneficiaries and be prepared to defend your actions if necessary.

When a Trust terminates, you need to distribute the Trust Estate to the Beneficiaries as soon as possible and close the Trust. Depending on the objectives of the Trust and the desires of the Beneficiaries, a Trust can be terminated in as short as 6 months or it can continue for several years.

When terminating the Trust, you must pay the Trust expenses, creditor claims and administrative costs. The balance of the Trust will be distributed to the Beneficiaries in kind (give the specific asset to the Beneficiaries), or you can sell the assets and distribute cash to them.

If there is personal property belonging to the Trust, you will decide to whom the property is to be distributed. With luck, a Tangible Personal Property list has been left in the Trust, indicating to whom the items go. If not, you will decide. One way to divide up the personal property is to place items of approximate, equal value into separate piles, put numbers on them and have people draw a number and claim that pile.

When you make the distribution of the Trust, you should consider holding back a small reserve to cover any additional expenses or tax liabilities. You should talk with your accountant about the need to file a tax return for the Trust.

Once you are confident that all Trust expenses have been paid, you may distribute the reserve balance to the Beneficiaries. You may want a signed receipt from the Beneficiaries that they have received the distributed assets and that they release you from any further liability or responsibility as the Trustee of the Trust.

It’s an honor and a significant responsibility to be chosen as a Trustee—to be trusted to carry out the objectives of the Trust and protect the interest of the Beneficiaries. If you are concerned about something you don’t fully understand, we are available to answer questions.

August 2019

Advanced Care Planning

Communicating your healthcare wishes will ensure that you get the care you want.

Most of us dislike thinking about the possibility of an accident or illness impacting us, especially if something is severe enough to impact our ability to communicate our wishes for medical care.

While it can be difficult to think about these scenarios, when events do occur, circumstances are made even more challenging if you have not discussed and documented your wishes and preferences ahead of time.

The term “Advanced Care Planning” is often used to describe the process of learning your options for healthcare intervention, discussing your desires and letting others know your decisions. Let’s first outline the types of decisions that you might need to make:

Emergency Care Decisions – If you did not have a pulse, would you want to have CPR (cardiopulmonary resuscitation); if you were having difficulty breathing, would you want a ventilator used (a machine that breathes for you); if you could not take food and water normally, would you want artificial nutrition and hydration (such as a feeding tube) given? Generally, these measures are implemented temporarily until you recover from your illness or injury.
End-of-Life Care Decisions – This relates to your desired level of medical care if you are unable to communicate and your doctor has determined that you are terminally ill and will not recover. In this situation, would you want aggressive interventions, such as a long-term ventilator or feeding tube to be used or would you want simply to receive comfort care?
Choosing a Healthcare Agent – You can choose someone you trust to make healthcare decisions on your behalf if you are unable to make those decisions for yourself.

After determining your preferences, you need to make your wishes known. There are typically two main components to an Advanced Directive–a Living Will and a Durable Power of Attorney for Healthcare.

Living Will – A Living Will goes into effect if you are unable to communicate your wishes and a physician has determined you will not recover. In the living will, you specify in writing what treatment you do and do not want, and under these conditions.

Durable Power of Attorney for Healthcare – A Durable Power of Attorney for Healthcare names someone to make medical decisions for you if you cannot communicate and are unable to make decisions for yourself.

Other Documents – If you or a loved one is in poor health and has a clear preference for no Emergency Care, such as not wanting CPR or a breathing tube under any circumstance, you may also want to consider completing a POST (Physician’s Order for Scope of Treatment) form with your physician. A POST allows you to obtain a doctor’s order for a DNR (Do Not Resuscitate) status, if you do not want to have CPR to restart your heart, or other interventions, to keep you alive.

We recommend that everyone complete a Living Will and Durable Power of Attorney for Healthcare while they are competent and capable of communicating their wishes clearly. Often when a crisis strikes, you may not be able to communicate your preferences and your physicians and family members are left with the decision-making burden. Completing these documents allows you to clearly communicate your wishes, and also provides a gift for your family members to alleviate their distress and know they are acting according to your wishes in difficult times.

We are here to help if you have questions, would like assistance with understanding more about this process or preparing these documents, or need additional information or referrals to resources in your community.

July 2019

Understanding Legal Planning

Procrastinating can lead to a situation where it’s “too late.”

Meeting with a lawyer to discuss your legal needs can be compared to meeting with your doctor for a wellness exam. Your doctor evaluates your current health situation and recommends actions that you can take to ensure as healthy a future as possible. If, on the other hand, you procrastinate and don’t have regular wellness exams, sometimes when a problem is discovered it is too late to do anything about it. Early detection is always best.

When you have a “legal wellness” exam, your lawyer can advise you concerning what legal documents you need to have in place and what actions you need to take to be as prepared as possible for any eventuality that might occur. Sometimes, if you have a chronic illness, planning for long-term care should also be part of the conversation. In law as in medicine, if you wait too long, once the problem becomes evident, you may not be able to do anything about it.

For example, sometimes individuals set up a Trust to avoid probate. After the Trust is set up, they buy and sale property but some of the property is mistakenly not put into the Trust. When the grantors of the Trust pass away, their failure to transfer the property to the Trust is discovered. So, their heirs must probate the estate to transfer title to the property into the Trust. The goal of avoiding probate has been frustrated. Meeting with a lawyer to review the Trust could have avoided this.

Another example is when Mom and Dad are doing fine, so they aren’t thinking about their “legal wellness”. Then years go by and one of them unexpectedly becomes incapacitated. It’s now too late to put legal documents in place to appoint agents, who can act on their behalf. It makes sense to have regular “checkups”—medical and legal to take care of things while you still can.

Quality of life is important to each of us. Just as a wellness exam can catch physical problems while they are still treatable, legal exams can identify and solve problems while you are still able to do something about it.

June 2019

Staying in Your Home – A Review of Assistance Options

Don’t confuse Home Health with Home Care

Even when an older adult’s health declines, surveys show that the majority of Seniors want to live at home for as long as possible. Living at home provides a sense of independence and familiarity that is often not found outside the home.

However, Seniors often wonder about what options exist for in-home care and the terminology can feel confusing and overwhelming. To provide clarification, in-home care generally is divided into two distinct categories: Home Health and Home Care. Many people use the terms interchangeably, but they are two different services provided.

Home Health – Home Health is clinical, medical care provided by skilled, medical professionals, including registered nurses, physical therapists, occupational therapists, and speech therapists. It is not designed to be long-term and is often prescribed by a doctor following a hospitalization or surgery to aid in rehabilitation. Home Health services, for homebound individuals, may be able to provide a non-clinical caregiver to assist with basic personal care and bathing, but the focus of the services is skilled, medical care.

Typical services may include wound care, physical therapy, occupational therapy, medication administration, and nursing services.

Home Health services are covered by Medicare when prescribed by a physician. Medicaid also pays for qualified individuals.

Home Care – Home Care is provided by caregivers, or care aides, who are trained to assist Seniors with activities of daily living (ADL’s) and/or companionship. Home care aides may be Certified Nurse Assistants (CNA’s) but do not require certification. This is “non-clinical” care provided to Seniors who may need assistance to remain in their home. These services can be on-going for as long as they are needed.

Typical services may include meal preparation, house cleaning, assistance with dressing, bathing and grooming, transportation, companionship, and medication reminders.
Home Care services are not covered by Medicare. Payment options include private pay (typically approximately $20-$25 per hour), Long-Term Care Insurance, Medicaid for qualified, low-income individuals, and the VA Aide and Attendance pension.

Typically, Home Health services alone are not sufficient support for Seniors wanting to remain in their home, if they also need assistance with activities of daily living. However, many Home Care agencies exist that provide excellent service options to support Seniors and their family members. Additional supports, including Meals on Wheels for homebound individuals, and medical-alert devices, may also be utilized. A combination of Home Health services, Home Care services, community resources and family support is often the key to Seniors successfully and safely remaining in their homes.

We are here to help if you have questions, would like assistance with healthcare coordination, or need additional information or referrals to resources in your community.

WE WOULD LIKE TO INVITE YOU TO AN UPCOMING EVENT ON June 13, 2019:

Matt Rust, who specializes in wealth preservation & Tom Packer, Elder Law Attorney are presenting an EDUCATIONAL WORKSHOP about the cost and realities of long-term care. Thursday, June 13 at 6:00 pm at Tailwind Wealth Strategies – 3 NW Main Street, Blackfoot The biggest threat to your retirement income is related to longevity. There are benefits and options you may not be aware of.

We know it’ll be worth your time! (Refreshments!)

May 2019

Living Wills Specify Healthcare Wishes

Are you aware of these lesser-known facts?

Often, there is apprehension concerning end-of-life decisions. To make it easier, there are legal documents that you can put in place to carry out your wishes. One is a Living Will, which is an advance directive that sets forth your instructions for life-sustaining medical procedures if you are unable to communicate your wishes to your family and healthcare provider. Below are some lesser-known facts concerning a Living Will and Durable Power of Attorney for Health Care (DPOAHC) in Idaho.

A Living Will directs your family and healthcare providers on whether to continue or withhold life-sustaining treatments such as intubation, mechanical ventilation, or tube feeding for hydration and nutrition.
A Living Will takes effect only when a medical doctor certifies that you have a terminal and incurable illness, or you are in a persistent vegetative state.
In Idaho, the Living Will and DPOAHC are combined into one document.
A Durable Power of Attorney for Health Care allows you to appoint a person to make all decisions regarding your healthcare and takes effect only when you are not able to communicate.
If you can communicate, you will continue to make your own decisions concerning your healthcare, and what treatments you want. This includes making decisions about where you live—at home or in a facility.
There is a presumption in favor of cardiopulmonary resuscitation (CPR) if you do not have a pulse and are not breathing. This is a different condition than being diagnosed as terminally ill. If you do not want CPR you should indicate it in your Living Will and should fill out a Physician’s Order for Scope of Treatment (POST) with your doctor.
Living Wills created in other states that substantially conform to Idaho’s Living Will statutes, are recognized as valid.
Persons may give consent for their care to others, in the following order: a Guardian, the person named as an Agent in their Living Will, a spouse, a parent, a relative or any other competent individual representing himself or herself to be responsible for your healthcare.
If you have not made a prearranged funeral plan or if provisions relating to the disposition of your remains are unclear—for example, do you want cremation or a burial—the decision is made by the person designated as your Durable Power of Attorney for Health Care. If you want to make provisions relating to the disposition of your remains, you may want to prepare a document which specifies what you would like to have done.
A Living Will can be registered with the Idaho Secretary of State’s office, and if registered, your information will be available online to doctors, even if you are traveling.
If you change your mind, you can amend or revoke your Living Will and Durable Power of Attorney for Health Care.

When it comes to end-of-life decisions, there are things you can do to make it feel less daunting. Getting correct information and knowing what’s available, will help you make better choices.

April 2019

Veteran’s Benefits

Understanding the VA Aide and Attendance Pension

Veterans who have served on active duty during wartime are often unaware that they may be eligible for a VA Aide & Attendance Pension to help with the cost of assisted living, adult daycare, skilled nursing, and home care. A veteran’s surviving spouse may also be eligible for this assistance. The amount of this pension may be up to $1881 to $2230 per month, depending on the veteran’s family size, and the funds are given directly to the veteran or surviving spouse to help pay for his or her care.

The general qualifications include:

A veteran must have served on active duty for at least 90 days, with at least one day during wartime.
The veteran must have been honorably discharged.
The veteran must be at least 65, or officially disabled if younger.
A veteran must require help with activities of daily living.
A veteran must meet the income and asset guidelines.

There are three levels of VA Pensions: Basic Pension, Aid & Attendance, and Housebound. A veteran must be eligible for the Basic Pension in order to qualify for the Aid & Attendance and Housebound benefits and must have limited income and assets to be eligible. However, the income and asset guidelines are considered quite generous, given that the VA allows veterans to deduct their projected ongoing medical expenses from their income to reduce the amount of their countable income.

For example, if Bill has an income of $32,000 per year, but has assisted-living expenses of $36,000 per year, he would show a deficit and may be eligible for the full pension amount of $1881 per month, for a single person. With these additional funds, he could easily afford to pay for his assisted-living care. While the guidelines are far more complex than outlined in this brief example, it is helpful to see how a veteran could potentially be eligible. There is also an asset limit of $123,600, not including a primary home and vehicle, as well as a look-back period of three years for gifts and items sold.

Assistance is available for veterans interested in learning more about the VA Aide & Attendance Pension or for those interested in applying. Remember, you do not need to have a service-connected disability to be eligible for this pension. The Veteran’s Service Officers are able to assist with this process at 208-235-7890 or more information can be found online at https://www.benefits.va.gov/pension/aid attendance_housebound.asp. You are also welcome to call our office to obtain more information.

March 2019

Testamentary Special Needs Trust

By setting up a Special Needs Trust for your spouse in your Will, you can improve their quality of life.

If your spouse is disabled and receiving Medicaid or if there is a concern that your spouse may become disabled and need to apply for Medicaid to help pay for care, you may want to set up a Testamentary Special Needs Trust (a Trust created in your Will) to supplement your spouse’s needs beyond what is paid for by Medicaid.

Assets transferred into a Testamentary Special Needs Trust do not trigger the Medicaid asset transfer penalty, nor are they counted for eligibility purposes.The Trust is used to supplement the needs of your spouse over and above his or her care, support and maintenance.

A Special Needs Trust provides for material goods, services and experiences that will make your spouse’s life as pleasant and comfortable as possible. For example, expenditures for travel, companionship, cultural experiences, recreational activities and sporting activities may be paid for out of the Trust. The Trustee may use the income and principal of the Trust to pay for medical or dental treatments for which there are no private or public funds available. Supplemental care (nursing care, for example) rehabilitative services or assistance programs that are not otherwise provided for, may also be considered by the Trustee. In addition, Trust funds may be used to pay for the difference in cost of a private room, rather than a shared room, in institutional settings. All these things can greatly enhance your spouse’s life.

If you pass away before your spouse, and you don’t have a Special Needs Trust, the assets in your estate will go directly to your spouse and he or she would lose eligibility for public assistance programs. Your spouse would have to spend down the assets they received to $2,000 and then reapply for Medicaid. In that case, there would be no funds available to provide for the additional needs of your spouse, as mentioned above.

Supplemental Needs Trusts are legal, appropriate and encouraged by state law and statutes. These Trusts are set up by caring family members to provide for the extra needs of a disabled spouse, beyond what is provided by public benefit programs.

February 2019

Medicaid – Estate Recovery

What to expect when Medicaid pays for your long-term care.

Medicare, which pays for hospital, doctor and medication expenses, does not pay for long-term care. Medicare is an entitlement program that you do not have to pay back. Medicaid funds long-term care services for individuals who meet the qualifying criteria. However, when an individual, 55 years or older, has received Medicaid funds to pay for his or her healthcare, the Department of Health and Welfare, IDHW, is required by federal law to recover the cost of their care through Estate Recovery.

If a married individual, who received Medicaid funds, passes away, IDHW will not make a claim against that person’s estate until the surviving spouse has also passed away. During the surviving spouse’s lifetime, there are no restrictions on how the assets in the estate are used, as long as they are used for the surviving spouse’s benefit, and not given away. In addition, the surviving spouse can continue to live in the house or sell it and make other living arrangements. Whatever is left in the estate when the surviving spouse passes away, is subject to Estate Recovery.

When both spouses have passed away, the Personal Representative of their estate is required to provide written notice of the probate to the Estate Recovery division of IDHW. Estate Recovery is made against real and personal property in the estate. It is also made against property held in a revocable trust or property held in joint tenancy. However, IDHW does not make a claim against the death benefit of a life insurance policy.

There are some exemptions from Estate Recovery. One is, the decedent’s surviving spouse or adult children are allowed to keep any tangible, personal property such as household items, furnishings, automobiles, family heirlooms and personal effects, up to $10,000. Also, if an adult child pays fair market value for any item of property in the estate, they can keep it in the family.

Sometimes, I use this analogy to explain Estate Recovery. When I was in law school, I didn’t have enough money to cover all the expenses, so I took out a student loan. When I graduated, I received a letter from the bank with my loan repayment schedule. Similarly, when a person who received Medicaid “graduates,” or passes away, their estate will receive a claim from Estate Recovery to pay back the money they borrowed to pay for their care.

These are complex laws and regulations. Make sure to speak with someone who has experience in this area before making any decisions.

January 2019

A Gift for You!

This Booklet helps you know how to be more prepared for the future.

Dear valued client,

We are sending you the attached Booklet entitled “A Senior’s Guide to a Well-Planned Future.” This booklet is designed to help you plan today for a better tomorrow, by putting legal documents in place and communicating your desires to your family. We hope that you find it interesting and informative. You may also view the Booklet or download it from our website listed below.

We believe that life is good, and that we can choose to make it even better. Having the opportunity to ‘connect’ with you each month through our Senior Tips is enjoyable for us and we hope it has been helpful to you. Often, we receive comments back from you which makes our day! We hope you have a very Merry Christmas, and we look forward to a happy New Year!

Sincerely, Tom Packer, Sandy Packer and Becca Freeburne

Click here to view & download the booklet

December 2018