Consider getting your financial and healthcare powers of attorney in place. 

Many people are proactive and execute durable powers of attorney well before incapacity becomes an issue. In most cases, having these documents in place will make it unnecessary for the court to appoint a guardian or conservator (a court-supervised person to administer an individual’s affairs).

Sometimes, a conservatorship or guardianship is necessary even when there are durable powers of attorney in place. For example, the agent appointed, or the attorney-in-fact, may be unable or unwilling to act or is disqualified from acting due to wrong-doing; the person who has become incapacitated may be a threat to himself or others; or the incapacitated person’s family may not be able to agree on who should be making decisions, or may not agree with the decisions that are being made. In situations such as these, the appointment of a conservator or guardian by the court may be appropriate. (A Guide to Elder Law Practice, 2007 Timothy L Takacs.)

If the court determines that a conservator is needed, Idaho Code § 15-5-410 for conservators list the persons entitled for consideration in the following order:

• an individual nominated by the incapacitated person in a financial power of attorney;
• the spouse of the incapacitated person;
• an adult child of the incapacitated person;
• a parent of the incapacitated person; or
• any relative of the incapacitated person with whom he or she has resided six months prior to the filing of the petition.

The court may disregard this order of priority or designate any other person, if it determines it is in the best interest of the incapacitated person.

There are advantages and disadvantages to having a court-appointed conservator or guardian:

1. Advantage: Guardians and conservators are supervised by the court. Annual accountings must be turned into the court by the guardian and conservator.
2. Disadvantages: Guardianships and conservatorships are expensive—with court costs, visitor, and attorney’s fees.

In conclusion, planning allows you to have a say in the important decisions affecting your life. In our website listed below, you can view our booklet called; “A Senior’s Guide to a Well-Planned Future” or if you are interested, you could stop by our office and pick one up. This booklet details what you need to have in place to be prepared in case of incapacity.

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.

June 2021

If your estate is less than $100,000, it is unnecessary to probate it.

In Idaho, small estates that have a value of less than $100,000, do not need to be probated for the heirs to collect the property in the estate. Thirty days after a person has died, any heir of the decedent—on behalf of all the heirs—may present an affidavit to any individual holding property of the decedent to obtain the property.

Idaho Code § 15-3-1201 lays out the requirements for the affidavit, which must state the following:

• The fair market value of the entire estate of the decedent is less than $100,000.
• Thirty days have elapsed since the death of the decedent.
• No application for the appointment of a personal representative in a probate proceeding is pending in any jurisdiction.
• The person claiming the property is entitled to payment or delivery of the property.

The effect of the affidavit is that the individual who delivers the personal property to the heir is released from any liability. They are released to the same extent as if they had dealt with a personal representative in a probate proceeding.

A form entitled Idaho Small Estate Affidavit for Collection of Decedent’s Property, Possessions, & Accounts can be found online. However, if you need to transfer the title to a vehicle belonging to the decedent, you can find an Affidavit of Inheritance form on the Idaho Department of Transportation’s web site.

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.

May 2021

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

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

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 100^th! 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 100^th 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

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 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

A simple and inexpensive way to create a Trust.

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

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

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

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

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

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

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

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

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

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity.

 If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

June 2020

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

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

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

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

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

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

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

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

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

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

Tom Packer is an Elder Law Attorney serving all of Southeast Idaho. As part of his law practice, Tom offers Life Care Planning to deal with the challenges created by long-term illness, disability and incapacity. If you have a question about a Senior’s legal, financial or healthcare needs, please call us.

May 2020