Author Archives: Jonathan Swain

Paying Attention to Beneficiaries

Make sure if certain changes occur, that you update your policies!

Many people set up their beneficiary designations on their life insurance policies or financial investments and don’t think about it again. However, if significant life changes occur, such as a death or divorce, it’s a good idea to review your beneficiary designations to see if they are still the ones you want.

For example, what happens when someone gets a divorce and fails to take the ex-spouse’s name off their insurance policy? When they pass away, their ex-wife or ex-husband could receive their death benefit, instead of their children.

I had this question come up recently. A father passed away, and the children contacted the insurance company to claim their death benefit—only to discover that the beneficiary on their Dad’s policy was his ex-wife. Even though they had been divorced over 20 years ago, he had never changed the beneficiary designation so that it would go to his children. The children called me to find out if there was anything that could be done.

Luckily for them, Idaho is one of about half of the states that has a revocation-upon-divorce statute that automatically revokes an ex-spouse’s designation as a life insurance beneficiary upon divorce. Idaho code § 15-2-508 revokes a pre-divorce life insurance policy as well as a gift to an ex-spouse in a Will or gifts in a Living Trust.

In conclusion, it’s wise to review your beneficiary designations on life insurance policies or other financial investments to make sure they are consistent with your intentions and there are no surprises in the future.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all 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 2021

Community Property with Right of Survivorship

Did you know that a home can’t pass to your spouse with an ‘or’ clause?

Many people are not aware that their interest in their home—unlike their bank account—does not automatically transfer to their spouse when they pass away. Similarly, most of us know that if you title your car in your name “or” in your spouse’s name, then either spouse may transfer the title to the vehicle to another person, even after one of them has passed away. However, for your home, to automatically transfer to a surviving spouse, there are specific requirements that must be met.

Idaho is a community property state. Under the law, each spouse has a 50% ownership interest in their home. When a spouse dies, his or her interest in their home passes to their estate—not to the other spouse. However, in 2008, the Idaho Legislature passed Idaho Code Section § 15-6-401 (Community Property with Right of Survivorship in Real Property). To create a right of survivorship in real property, you must have a deed prepared that states that the transfer creates an estate in “community property with right of survivorship.” If a husband and wife already own real property, they may deed the property to themselves, to be an estate in community property with right of survivorship.

Real property is your home, farm, or land. When real property is held by a husband and wife as community property with right of survivorship, it will automatically transfer and belong to the surviving spouse, upon the death of one spouse.

The practical effect of doing this is that when the first spouse passes away, rather than having to go through probate to transfer the deceased spouse’s interest in the home to the surviving spouse, all that has to be done is to record a Death Certificate at the courthouse to transfer the interest to the surviving spouse.

It’s a good idea if a husband and wife own a home, to prepare a Community Spouse Deed, which deeds the property back to themselves as an estate in community property with right of survivorship.

Getting a Community Spouse Deed in place can be part of a well-planned future that will make your life simpler in the long run.

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all 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 2021

It’s Our 100th Senior Tip! Let’s celebrate our connection with you.

Our motto: “Even the oldest tree some fruit may bear.” Longfellow

We have been connecting with you for 9 years, by sending you monthly, Senior Tips—and this is our 100th! We are an Elder Law Firm that specializes in helping Seniors with their legal, financial, and healthcare needs. To keep you informed on these key issues, we write tips in each of these three areas.

Our Elder Law practice is different by design. For example, if you need help finding long-term care, we can help with placement and can ensure that you get the quality care you deserve; if you need assistance paying for care, we help you apply for Medicaid; if you need to get your legal affairs in order, we make sure you have the right, legal documents in place.

We encourage all Seniors to have a well-planned future. As you grow older, you enter a new stage of life with new challenges. You are the one who knows best what you want your future to be. Because your loved ones may not know your desires, it’s important that you communicate with them and put written documents in place to give them the authority to act on your behalf if needed. Too often people put this off—sometimes until incapacity sets in—and then it may be too late. This can lead to the Courts stepping in and appointing a guardian or conservator. Planning prevents someone else from deciding for you! By having the best plan in place for your individual needs, life goes more smoothly, giving you more time to focus on what brings you joy.

There is still much that Seniors can do during this time in their lives. This is illustrated in a poem by Henry Wadsworth Longfellow:

“What then? Shall we sit idly down and say

The night hath come; it is no longer day?

The night hath not yet come; we are not quite

Cut off from labor by failing light;

Something remains for us to do or dare;

Even the oldest tree some fruit may bear;

For age is opportunity no less

Than youth itself, though another dress,

And as the evening twilight fades away

The sky is filled with stars, invisible by day.”

Our challenge to you in our 100th Senior Tip is for you to realize you still have much to offer. Make your life the best it can be—you only have one life to live. Enjoy it!

View our “Senior’s Guide to a Well-Planned Future” on our website! Packer Elder Care Law-with you for life!

Tom Packer is an Elder Law Attorney serving all 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.

February 2021

Nursing Home Resident’s Rights

You have rights and protections as a nursing home resident.

As a nursing home resident, you have certain rights and protections under Federal and state law that ensure you get the care and services you need. In a nutshell, you have the right to be informed, make your own decisions, and have your personal information kept private.

Federal law specifies you have the following rights:

  • Be treated with respect. You have the right to make your own schedule for when you rise until when you go to bed and to choose the activities you want to participate in.
  • Be free from discrimination. Facilities must comply with Civil Rights laws.
  • Be free from abuse and neglect. You have the right to be free from verbal, physical and mental abuse.
  • Be free from restraints. This includes side rails and chemical restraints.
  • Make complaints. You can make a complaint without fear of punishment.
  • Get proper medical care. You have the right to be involved in your choice of a doctor and be fully informed of your health status.
  • Have your legal representative or family member notified. If you have an accident or your health status changes your family member is notified.
  • Get information on services and fees. You have a right to receive information on Medicare and Medicaid benefits.
  • Managing money. You must be allowed access to your bank accounts, cash, etc.
  • Get proper privacy. You have a right to phone calls, private visits and mail. You may also share a room with your spouse if he or she is in the nursing home.
  • Spend time with visitors. You may have visitors at any time, if it doesn’t interfere with other residents or the provision of care.
  • Social services. You have a right to counseling, to contact legal and financial professionals, and to get help solving problems with other residents.
  • Leaving the nursing home. You may leave to visit family or friends overnight. You may also choose to move out of the nursing home.
  • Protection against unfair transfer or discharge. You can’t be sent to another nursing home or discharged unless it is necessary for your welfare, health and safety.
  • Resident groups. You have a right to participate in ‘resident councils’ to air grievances.
  • Have family and friends involved. Family, friends, and your legal representative can help make sure you get good quality care.

The goal of nursing homes is to help the residents feel comfortable and well taken care of and to make sure that their rights are protected. Your desires and decisions matter. If you have any nursing home concerns, our office is available to help and to work with facilities to ensure you receive quality care.

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.

January 2021

Fulfilling Basic Needs

Next time you get a chance, ask a Senior about his or her life!

According to Anthony Robbins, a life coach, all of us have 6 basic human needs:

  1. Certainty: to be comfortable and have some level of consistency.
  2. Uncertainty: we need variety and change to feel alive.
  3. Significance: the need to feel unique, special, and important.
  4. Love and connection: we need to give and receive affection and support from others.
  5. Growth: to become more.
  6. Contribution: to give beyond ourselves.

(www.TonyRobbins.com)

As we grow older, we still need certainty—we want to have predictability and to make our own decisions. We need uncertainty—we need spontaneous activities and things to do that keep our interest. We need significance—to be treated with respect and dignity. We need love and connection—we need time with our families and friends who love and care about us. We also need growth and contribution. Longfellow observed: “Even the oldest tree some fruit may bear.”  This reminds me of John Wooden, the famous UCLA basketball coach, who said: “Nowadays my bad knees and bad hips make it difficult to walk very far or to stand for very long…even at 94, I want to be the best I can be, and hard work is the only way to make this happen.”

When I was a nursing home administrator, I loved to talk with the residents about their lives. One resident’s father had been a Confederate soldier in the Civil War. Another had come with his family from Russia and entered the United States through Ellis Island. Later, they homesteaded 160 acres in American Falls. Next time you are with a Senior, take the time to ask him or her about their life. It will show them respect, that you care, and it will give them the opportunity to make a contribution to your life.

Wishing you and your family a Christmas Season filled with peace, love, and joy.

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 2020

November is National Caregivers Month!

Let’s take time to thank and encourage those who care for others.

In a recent newspaper article in “The Parade” there was a reminder that November has been designated as Family Caregiver month—to help understand the challenges and rewards of being a caregiver. In the article, it referenced Mike Eidsaune, who is the CEO of caregiving.com and founder of ‘Carely’, a free mobile app that simplifies caregiving communication for families. He suggests 3 tips to help caregivers with their needs and their feelings:

  • Redefine self-care—Remember, taking care of yourself is not being selfish! It’s a good idea to take time to do the things YOU like to do whether it’s walking, biking or having fun times with friends. That will not only help you feel better about caregiving, but it can actually help you to do a better job of it. Being active could increase your stamina and strength to do what needs to be done. Also, meditation or relaxation techniques like Yoga might put you in a better place emotionally to communicate with those you are caring for.
  • Find community—Caregiving can feel lonely at times, but it doesn’t have to! You can connect with other caregivers at caregiving.com where you can join public forums and listen to podcasts or read related articles.
  • Don’t just ask—If you’re trying to support a caregiver, don’t just ask how you can help. Often the caregiver is overwhelmed and is making all the decisions for their loved one and it can be added stress to make more decisions. Instead, do the things that you know would be helpful to that person. Whether that’s helping with their chores, yard work, shopping or walking their dog, this can help the caregiver to feel supported logistically or emotionally. In addition, Alzheimer’s Association has a 24/7 Helpline (800-272-3900) to provide support, information and referrals to local resources 365 days a year. These services include care consultation, education, customized care plans or safety information.

If you are a caregiver, thank you for your selfless service and remember that help is available if you need it.

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 2020

Medicare Annual Enrollment/Changes

Now is the time to review your coverage and your prescription drug plan.

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 change or enroll in Medicare Advantage plans.

This annual open enrollment period lasts from October 15th to December 7th and any changes you make will be reflected starting in January 2021. For example, if you decide to change your prescription drug plan during open enrollment, the new plan will be effective on January 1, 2021.

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 that you may not be aware of, 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.

October 2020

Personal Representative’s Duties

If you have been asked to be a Personal Representative, there are some things you should know. 

Being asked to be a Personal Representative indicates someone’s trust in you. You do not need special financial or legal knowledge to be a good Personal Representative. Common sense, conscientiousness and honesty are the main requirements.

If you have been nominated to be a Personal Representative, you are not obligated to serve. When the time comes, you may decide if you want to accept the responsibility. If you decide not to serve, or if you resign, an alternate named in the Will can take over.

As Personal Representative, your duties may include the following:

  • Consulting with an attorney to decide whether probate proceedings are needed. You may need to probate, even if you do not have a Will.
  • Filing the Will in the local probate court, asking the court to appoint you as Personal Representative and then shepherding the estate through probate.
  • Deciding whether at least some assets can be transferred immediately, such as personal belongings to the people named in a tangible personal property list.
  • Locating, inventorying, and securing estate assets and then sensibly managing them during the probate process. During this time, you may need to manage investments, pay bills, and sell items of estate property.
  • Paying continuing expenses that are necessary to keep estate property secure—for example, mortgage payments, utility bills and homeowner’s insurance premiums.
  • Handling day-to-day details, such as terminating leases and other outstanding contracts, and notifying banks and government agencies—such as the Social Security Administration, the Post Office, Medicare and the Department of Veteran’s Affairs—of the death, and the fact that you are winding up the affairs.
  • Sending notice of the probate proceeding to the beneficiaries named in the Will.
  • Paying any debts that the estate is legally required to pay. As part of this process, you may want to notify creditors of the probate proceeding. Creditors then have four months to file a claim for payment of any bills or other obligations incurred by the deceased person. If you do not file a notice, the debts are not cut off.
  • You may have to file a final income tax return for the year in which the deceased person died.
  • Finally, after debts and taxes have been paid you may distribute the remaining residuary estate to the persons named in the Will or to the heirs at law if there is no Will.

A lawyer will help you to probate the estate. You will still be responsible for making decisions and administering the estate, but the lawyer will guide you through the process and file documents with the probate court. You may be reimbursed out of the estate for your services or any expenses you incurred.

The main reason for acting as Personal Representative is to honor the person who requested you to serve and to make sure his or her wishes are carried out.

Tom Packer is an Elder Law Attorney serving all 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 2020

Probate Myths

Probate is not a 4-letter word! It’s a way to properly administer your estate and distribute your assets to your loved ones.

The word probate does not need to make you shutter with fear. You may have heard these probate myths:

  • Probate is difficult and should be avoided at all cost.
  • If you don’t have a Will, you don’t need to probate.
  • If you don’t have a Will, the State will take all of your property.
  • Probate is expensive and takes years to complete.

It is important to separate fact from fiction. First, probate is the process whereby the Court determines the validity of the Will and appoints a personal representative to settle the estate. The personal representative pays the claims and debts against the estate, identifies who is entitled to distribution of the assets, and ensures that the deceased’s wishes are carried out.

I have been asked on occasion, “Why must we probate?” Imagine for a moment what it would be like if you were playing in a basketball game and there were no rules or referees. Whether you are playing basketball or probating an estate, without rules there would be chaos! In basketball, we need referees to make sure the game is being played fairly and according to the rules. When probating an estate, the Court makes sure the process is fair to everyone and that the rules are being followed.

Let’s return to those probate myths. Probate is an efficient way to settle estates. In Idaho, the process usually can be completed within six months and often costs between $1,000 and $2,000. If you don’t have a Will, your property passes according to Idaho law—your family, not the state, would get your property.

However, not all estates have to be probated. For example, if there are bank accounts with a Pay-on-Death (POD) designation, they go directly to the named individual without probate. Insurance policies and financial investments with named beneficiaries do not need to be probated. Property held in joint tenancy with the right of survivorship is not probated. In addition, if you have a Trust your estate does not need to be probated. But buyer beware—putting property into a Trust can be expensive and difficult to manage, especially if you are buying and selling a lot of property, etc.

If you have a small estate, probate can probably be avoided with some planning. However, if you need to probate, in Idaho, it is simple, fast, and not that stressful.

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.

August 2020

Understanding Miller Trusts for Medication Qualification

If a senior has a gross income of over $2,349 per month they will be required to set up a Miller Trust before they can be eligible.

To qualify for Medicaid, a senior’s income and assets must fall below the established Medicaid guidelines. Often a senior has too much income to qualify yet cannot afford the cost of their assisted living or nursing-home care. For example, the current federal income limit for Medicaid eligibility is $2,349 per month, but costs for care can range from $4,000 to $10,000 per month.

What is a senior to do in this case? Idaho allows seniors to establish a qualified income trust, called a Miller Trust, where the excess income, over the income limit can be placed. When a Miller Trust is established, a senior is able to qualify for Medicaid even if their income exceeded the income limit, as long as the excess income is deposited into a Miller Trust Account and used toward the cost of their care.

After a Miller Trust document is created and an account set up at a banking institution, the excess income must be deposited into the Miller Trust Account each month, and then spent by the Trustee toward the senior’s care costs and other limited needs. The Trustee of the account cannot be the Medicaid applicant, since they are giving up their rights to those funds and entrusting the Trustee to manage the funds. A Miller Trust is not a way to protect funds from Medicaid, but rather a way to hold income in a protected manner so it can be used to pay for the senior’s care and allow the senior to qualify for Medicaid.

In conclusion, if a senior applies for Medicaid and has a gross income of over $2,349 per month, they will be required to set up a Miller Trust before Health and Welfare will approve them. In these cases, we advise calling our office or consulting with an elder law attorney prior to filing a Medicaid application to ensure that approval for Medicaid is not delayed.

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.

July 2020