Author Archives: Jonathan Swain

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

Custodial Trust

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

Trustee, Personal Representative, and Powers of Attorney

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

Coronavirus Scams are Prevalent!

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.govwww.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

Settling the Estate

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

Smart Legal Planning

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