Category Archives: Senior Tips

Guardianship and Conservatorship

Sometimes families need to petition a court to obtain a guardianship or conservatorship for a loved one who has diminished capacity. Because the court would be taking away the fundamental right of self determination—the right to determine where one will live, who one will live with, how one’s money will be managed, and what kind of medical treatment one will receive—this is never an easy decision. In deciding these cases, courts are put in the difficult position of balancing the individual’s rights against ensuring the individual’s safety and well being.

In Idaho, a guardian is a person appointed by the court to take care of another person called the ward. A conservator is a person appointed by the court to manage the financial affairs of the ward. The guardian and conservator may be the same person, or they may be different persons. In some cases, the court may appoint only a guardian or only conservator depending on the circumstances and needs of the ward.

In recent years, guardianships and conservatorships have been undergoing a dramatic revision. Guardians and conservators are required to complete a training course before the court will issue an order appointing them. Courts are using limited guardianships and conservatorships more frequently, giving only the authority the guardian or conservator needs to assist the ward and to maximize the ward’s autonomy. Finally, courts are providing oversight by requiring the guardian and conservator to file annual reports, so that the court can monitor the ward’s finances and status.

Occasionally, children of elderly parents petition for guardianship and conservatorship to get control of their parents’ assets, rather than seeking the best interest of their parents. In such cases, the children should not be appointed guardian or conservator and a more suitable person should be found.

The decision to grant a limited or a full guardianship or conservatorship comes down to the capacity of the proposed ward. Making a comprehensive capacity assessment gives the court the ability to tailor a guardianship or conservatorship to the ward’s specific needs. Next month, we will discuss how capacity assessments are made.

Long-Term Partnership Program – June 2012

One of the biggest challenges facing seniors is financial security. A key aspect of this challenge is the need for long-term care insurance verses the affordability of the policy. The federal government is trying to help. In 2005, Congress passed the Deficit Reduction Act (DRA) in an effort to encourage and enable people to purchase long-term care insurance. The DRA created the Qualified State Long-Term Care Partnership program, which offers long-term care insurance policies that allow buyers to protect assets and qualify for Medicaid when the long-term policy benefits run out. When you purchase a policy, the state will not count an equal amount of assets as the face value of the policy when it determines your eligibility for Medicaid assistance.

For example, if you are single you would normally be allowed to keep only $2,000 in assets to qualify for Medicaid. However, if you buy a Qualified Long-Term Care Policy that provides a $150,000 of benefits, you would be allowed to keep $152,000 in assets and still qualify for Medicaid. When purchasing long-term care insurance it is important to purchase a qualified policy and to understand the different coverage options offered under the policy. For example some policies will offer inflation protection of 5% a year and non-forfeiture benefits which returns a least part of the premiums to you if you cancel or let your policy lapse. You should also understand when the policy will begin to pay for your care, what services are covered (skilled nursing facility, assisted living, home care) and the length of care covered.

To get more information call the Idaho Department of Insurance Senior Health Insurance Benefits Advisors at: 1-800-247-4422.

Alzheimer’s – The Longest Day

Unfortunately, there is no cure for Alzheimer’s but you can make a difference.

Do you know the 10 signs of Alzheimer’s’ Disease?

1) Memory loss that disrupts daily life

2) Challenges in planning or solving problems

3) Difficulty completing familiar tasks

4) Confusion with place and time

5) Trouble understanding visual images and spatial relationships

6) New problems with words in speaking and writing

7) Misplacing things and losing the ability to reduce steps

8) Decreased or poor judgment

9) Withdrawal from work or social activities

10) Changes in mood and personality

Alzheimer’s disease is currently the most prominent type of Dementia. According to the Alzheimer’s Association, “Nearly one in every three seniors who die each year in Idaho has Alzheimer’s disease or another Dementia”. The national cost of Alzheimer’s disease in 2012 reached $203 Billion dollars. We want to say thank you to the 76 thousand caregivers that gave their time and energy to provide care for loved ones that are living with Dementia every day.

For additional support please contact your doctor, an elder law attorney or call the Alzheimer’s association 24/7 helpline at 1-800-272-3900. This help line is confidential and staffed by master level care consultants for support and guidance. To learn more go to https://thelongestday.alz.org/

Medicare Mistakes

When choosing a Medicare plan or buying supplemental insurance, make sure you understand what is covered and tailor your plan and insurance to your specific needs and circumstances.

One way to avoid mistakes is to learn from the experience of others. Here’s an opportunity to learn from one of my clients.

I have a client whose husband was in a Skilled Nursing Facility (SNF). When asked how she was paying for his care, she said that Medicare and her supplemental insurance were paying for it. This seemed like a reasonable explanation since Medicare will pay for the cost of care in a SNF, if her husband had a 3-day stay in the hospital prior to entering the facility, and if he continued to need skilled nursing services. However, I knew that Medicare would only pay the full cost of care for the first 20 days; after that, Medicare would pay part of the cost for an additional 80 days, with a $148.00 copay per day.

My client’s husband stayed in the facility for the full 100 days. Time passed and a bill came from the SNF. When the bill was substantially more than my client anticipated, I called the SNF and learned the following: My client did not have Medicare and a supplemental insurance; instead, she had a Medicare Advantage Plan. Medicare Advantage Plans fall under Medicare Part C and include some types of managed care plans to provide Medicare benefits. There are four different plans available under Medicare Part C. Each plan has advantages and disadvantages in the services and coverage offered. We learned that while some supplemental insurances will pick up the copay for care in a SNF, the plan that my client had did not completely cover her husband’s care.

When buying Medicare supplemental insurance, make sure you understand what it covers and tailor your insurance to your specific needs and circumstances. If you need help understanding Medicare, SHIBA (Senior Health Insurance Benefits Advisors) provides free assistance in understanding the complexities of the Medicare program. You can contact SHIBA at 1-800-488-5764 or go online at www.shiba.idaho.gov. An attorney experienced in handling Medicare and Medicaid questions can also help you.

Life Care Planning

After raising families and working hard all of their lives, many older adults want to stay put, relax and enjoy life in the comfort and familiarity of their own homes. However, after a health care set-back or facility stay, many seniors lack support from family or the community to assist them when transitioning home. When seniors feel helpless, they often will accept living in an care facility, when with assistance, they may be able to return to their homes. Life Care Planning is designed to help families respond to the challenges associated with long-term illness or disability of an elderly loved one.

Seniors with chronic health care needs not only have to deal with health care issues, but also with financial and legal issues. A Life Care Planning Law Firm combines the expertise of an attorney and a licensed social worker. The elder law attorney provides services such as estate planning and public benefits qualification and the social worker locates and coordinates appropriate, high-quality care.

As advocates for seniors, Life Care Planning Law Firms protect their rights and ensure their independence and quality of life. If problems arise with care providers or with public benefit agencies, seniors and their families appreciate having a law firm on their side.

Medicaid Mistakes

A traditional estate plan, prepared for a couple when they were healthy, will be turned upside down if one of them develops a chronic health problem. The cost of long-term care can quickly deplete a couple’s savings that has taken a life time to acquire. When paying for long-term care, there is always the question of how to preserve assets to meet the life-time needs of the spouse who remains at home and to provide the highest quality of care for the spouse in a facility. Medicaid will help pay for long-term care; however, money received from Medicaid to pay for long-term care may be recouped through Estate Recovery, just like I had to repay my student loan when I graduated from college.

Qualifying for Medicaid is based on a means test of an applicant’s monthly income, assets, and medical need. When a married applicant with spouse at home applies for Medicaid, the applicant spouse is allowed to keep $2,000, and the at-home spouse is allowed to keep their home, one vehicle, plus one half of the countable assets up to a maximum of $115,920. (Medicaid rules set the allowable amount and define countable and noncountable assets.)

Many couples, when applying for Medicaid, make mistakes based on misinformation they have received from a well-intentioned friend, neighbor, or health-care worker. The following example shows how this can happen. Bill has dementia and is being cared for at home by his wife, Mary. Knowing that one day her Bill may need to go to a facility and knowing how much health care cost, Mary discusses her concerns with a neighbor. The neighbor tells Mary that Medicaid requires a spend down of one half of the couple’s assets to qualify for Medicaid. Acting on her neighbor’s advice and unaware that she should file a Community Spouse Resource Allowance (CSRA) with the Idaho Department of Health and Welfare (IDHW) before spending down their money, Mary spends down half of the Couple’s $200,000 that they have in CDs and various bank accounts to $100,000.

Mary then files an application for Medicaid and provides the necessary financial information to IDHW. Mary is told that her attempt to spend down the money had no effect because she had not filed a CSRA before spending down the money. Therefore, she will have to do a second spend down of one half of the couple’s current assets before Bill will be eligible for Medicaid. Had Mary filed the CSRA first, she would have been able to keep $100,000 instead of $50,000. This brief example shows how complex Medicaid rules are, and how mistakes like this one can be avoided by obtaining advice from an attorney experienced in handling Medicaid cases.

Medicare / Medicaid

As I consider this article and putting Medicare and Medicaid into a nutshell, squirrels scamper outside my window. The fall preparation and resiliency of these creatures are tested by our long Idaho winters. Winter has been aptly compared to old age. The Roman poet Ovid wrote, “Then with faltering steps, and shriveled, shivering, old winter treads; now all its hair is gone-or any left is white.” Like winter, old age is a test of a lifetime of preparation and an individual’s resiliency

Procuring and paying for medical care is one of the challenges of old age. Medicare is a federal program intended to provide financial protection against medical care costs for older adults. Eligibility requirements for Medicare include being age 65 and over and qualifying for Social Security or Railroad retirement benefits. Medicare is divided into different parts. Part A coverage is premium-free and covers expenses related to hospitalization and related care and equipment, inpatient care at a skilled nursing facility, home health care, and hospice. Part B of Medicare is a voluntary supplemental insurance to Part A. In 2012, the Part B premium for individuals earning less than $85,000 annually was $99.90. Part B covers physician’s services, medical supplies, and many other services not covered by Part A. Many people entering older adulthood assume that their health care costs will be covered by Medicare. While the goal of Medicare is financial protection, only a percentage of health care expenses for the elderly are paid by Medicare. Unfortunately, limitations and exclusions of the Medicare program result in a gap in coverage. This gap in coverage is paid by a number of different sources including self-funding, private supplemental insurance, the Veterans Administration, and Medicaid.

Medicaid is a joint federal and state program. It was developed through legislation in the 1960s to offer assistance to people without the financial means to pay for necessary medical care. Accordingly, a means test for assets and income determine eligibility for Medicaid. Assets are treated as either “countable” or exempt. For example, exempt assets commonly include a primary residence, personal furnishings, prepaid funeral and one vehicle. Countable assets include cash, savings and checking accounts, IRAs and the cash value of insurance policies. Before an individual can qualify for Medicaid, countable assets must be exhausted. Special consideration is afforded to spouses of nursing home residents. Spouses are allowed to keep monthly income such as Social Security benefits and retain a portion of the couple’s joint assets. During older adulthood, Medicaid often provides funding for nursing home care that would otherwise be unaffordable to many. Next month we will review some Medicaid misconceptions and mistakes to look out for.

Medicare and Medicaid rules are complex. If you have a specific question, you should consult with an attorney.

Fulfilling Basic Needs

All of us, including Seniors, have 6 basic human needs. Anthony Robbins, a life coach, describes them as follows:

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

(www.TonyRobbins.com)

These needs don’t diminish as we grow older. We still need certainty—we want to have predictability and make

our own decisions. We also need uncertainty—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—our families and friends need to spend time with us and show that they care. We need growth and contribution—even though this is not always possible, 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.”

Seniors enrich our lives in so many ways. As 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’re with a Senior, take the time to ask him or her about their life.

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

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho.

Living Will and Durable Power of Attorney for Health Care

A will is an expression of your wishes or desires. When we talk about a will, we are usually referring to your desires concerning the disposition of your property after your death. A Living Will—a will that takes effect while you are still living—is an expression of your wishes concerning medical treatment. The Idaho legislature recognizes “the right of a competent person to have his or her wishes for medical treatment and for the withdrawal of artificial life-sustaining procedures carried out even though the person is no longer able to communicate with the physician.”[1] Idaho’s Medical Consent and Natural Death Act[2] establishes an effective means for making such a communication.

In Idaho, there are two kinds of advance directives—a living will and a durable power of attorney for health care. A single form is used for both and can be obtained from your local hospital, attorney or the Idaho Secretary of State’s web site. Your living will is an advance directive to your health care provider communicating your wishes for medical treatment at the end of your life. Your durable power of attorney for health care takes effect when you are not able to communicate. You may want to personalize your durable power of attorney for health care beyond the basic form by giving directions to your health care agent concerning the type of care you desire and your personal preferences if you become incapacitated.

Idaho also uses a POST form (Physicians Order for Scope of Treatment) to express your wishes concerning how you want to be treated from a medical perspective. The POST form is recognized as Idaho’s Do Not Resuscitate Order. To be valid the POST must be signed by you (or your agent acting as a durable power of attorney for health care) and by your physician. If you have a POST form you should keep a copy of it where it is immediately visible to Emergency Medical Service personnel so that they can honor your wishes.

The POST form and the living will compliment each other. Like suspenders and a belt working together to keep your pants up, a POST form and a living will work together to make sure your wishes are followed.

You may register your living will and durable power of attorney for health care and your POST at no cost in the Idaho Health Care Directive Registry located in the Idaho Secretary of State’s office. By registering these documents your family and health care providers with internet access may view these documents in case of an emergency. You will receive a wallet-size registration card with an individual filing number and password on it from the Secretary of State that you can keep with you.

We plan for every important event in our lives—births, weddings, education and careers. It can be difficult to plan for our incapacity or end of life. However, by planning for them we can assure that our wishes will be fulfilled and our loved ones will have peace knowing what to do.

If you have a question about a senior’s legal, financial or health care need, give us a call. We’d love to talk with you.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho and is a licensed Nursing Home Administrator.

Power of Attorney

The other day I got a call from a daughter whose mother had fallen and broken her leg. She explained that her mother had been declining both physically and mentally for several months. Friends had advised the daughter to get a power of attorney. The daughter asked me, “What is a power of attorney and do I need one?” This question illustrates the fact that a senior who has a health problem has a financial and a legal problem too. If a senior becomes incapacitated, who will make decisions and act for the senior in his or her financial and business matters?

A power of attorney is a document that evidences the authority of one person to act for another, known as an agency relationship. Using a power of attorney, you (the principal) grant legal rights and powers to another (the agent or attorney-in-fact.) Your agent stands in your shoes and can make financial decisions for you. For individuals coping with dementia, this type of financial assistance is essential. However, before executing a power of attorney you should know these important facts:

A power of attorney authorizes your agent to make decisions concerning your property. Your agent can do whatever you may do—withdraw funds from bank accounts, trade stock, pay bills, cash checks, deed property—unless limited in the power of attorney.

The power of attorney does not authorize your agent to make health care decisions for you.

Unless a power of attorney is springing—taking effect only if you become incapacitated—it takes effect as soon as it is signed.

You should select someone you trust to serve as your agent. Your agent’s authority will continue until your death unless you revoke the power of attorney or your agent resigns.

Your agent is entitled to reasonable compensation unless you state otherwise in the Special Instructions.

You may revoke the power of attorney at any time by sending your agent a letter that the power of attorney is revoked

The law governing powers of attorney is explained in the Uniform Power of Attorney Act, chapter 12, title 15, Idaho Code.

In addition to making a power of attorney for financial matters, you should also make a living will and durable power of attorney for health care. With these two documents, many times the need for a guardianship/conservatorship can be avoided in case of incapacity. In next month’s tip we will discuss living wills and durable power of attorney for health care.

Tom Packer is an Elder Care Attorney serving all of Southeast Idaho and is a licensed Nursing Home Administrator.

Visit www.packereldercarelaw.com.