Elder Law

By Susan M. Graham, Attorney at Law, Senior Edge Legal, Boise, Idaho

         Margaret Barkley, a retired first grade teacher, has been married for 45 years to Al, a machinist.  They lived in town and have one son, Lee, also a machinist who is married to Sally.  Lee and Sally have three children, Joe, Pete and Victoria. 

         Margaret and Al have been frugal all their lives and made a habit of putting money aside every paycheck.  Now they are in their seventies and plan to leave everything they have to their son Lee, when they both die.  They have not told Lee, but they never liked his wife.  The Barkleys want to make certain that Sally does not end up with Lee’s inheritance

         Margaret and Al have another worry--their grandson, Pete.  Pete is 17, spends all his free time fishing in the Boise River and rather than study, he is with his girlfriend.  His grades are so bad that he may not graduate from high school.  His grandparents are concerned that unless Pete changes his ways, he will not be able to support himself.

         What to do?  Margaret and Al talked to their estate-planning attorney and shared their concerns about Lee, Sally and the grandchildren.  They were honest in sharing their worries.  For certain they did not want to give everything to Lee, and have it go to Sally when he dies because, if she remarried, Sally’s second husband would end up with everything.   They want all their assets to pass to Lee and somehow be protected from Sally inheriting the balance.  In addition, they want to help and protect their grandchildren.  Their attorney suggests one planning method to accomplish their goals is to create an “Inheritance Trust.”

         How does an “Inheritance Trust” work?  Margaret and Al create the Inheritance Trust now, and they name the Trust as the recipient of their estate when they both die.  Lee manages the Trust and also has the use of the estate assets deposited in the Trust.  A big difference is when Lee dies the assets in the Trust go to his children, not his spouse.  In addition, the funds in the trust can be used to help provide an education for the grandchildren.  Pete can get the help he needs to be self-supporting, but he will not be able to freely waste the money in the Trust. 

         There are a number of additional benefits to leaving assets in Trust to Lee.  These include: (1) the assets will be protected from his spouse in the event of divorce, (2) the assets will be protected from Lee’s creditors in the event of a financial hardship, (3) on Lee’s death, the unused assets will go to his blood relatives (grandchildren) instead of in laws, and  (4) these assets are protected from lawsuits.   If the grandchildren are under age 30, the funds are held in Trust for them until 30, but the funds can be available to the grandchildren to help them get started in life.

         If you want to protect your children’s inheritances from divorce, lawsuits, creditors and bankruptcy, call and set up an appointment with me to see how this planning technique fits for your estate plan.

by Susan M. Graham, Attorney at Law, Senior Edge Legal, Boise, Idaho

We have no money in this country.  We all know that.  How does this impact on you if you need to pay for residential long-term care in a nursing home, assisted living or in your own home?

There are two government programs that are available to seniors to help pay for care - Medicare and Medicaid.

Medicare is a national health insurance program for people 65 and older.  Medicare will help pay for a maximum of 100 days of care.  To access this benefit a few requirements must be met.  First, a person must be admitted to a hospital and stay there at least three days.  Then, when they are discharged to a rehabilitative facility, such as the Boise Elks, if that person is improving, Medicare will pay 100% for the first 20 days of care.  If the person continues to improve, Medicare will pay part and the individual or their supplemental insurance will pay part of the expense for the next 80 days.

What are the holes in this "safety net"?  First, the Medicare recipient must be ADMITTED to the hospital and not there for OBSERVATION.  The difference is huge.  If a person is not admitted, Medicare will not pay a dime toward the rehabilitative care.  If Medicare does not pay, then in most cases the supplemental health insurance coverage will not pay for the care as well.  This problem is happening here in Idaho as well as nationwide.  The bills for the first 20 days that I've seen range from $6,000 to $30,000.  This is a huge bill for most individuals and families to absorb.

The next hole in the Medicare safety net requires that the person be "Improving" during their rehabilitative care.  My cousin, Kathie, at age 98, went to the hospital for three days.  She was admitted.  They discharged her back to her nursing home and I was called two days later saying Medicare would not pay for her care because she was not "improving."  She was old and could not follow instructions.  I was not surprised that she failed this second test.

Another "safety net" is the federal and state Medicaid program.  Part of this program helps to pay the long-term residential care expenses for people 65 and older who meet a list of criteria.  The cost for privately paying these bills ranges from $20 per hour for a bath aide to $8,000 per month for skilled nursing care.  To access this benefit, it is necessary to complete an application form and submit it to the Idaho Department of Health and Welfare.  The last two application forms we submitted on behalf of a married couple were approximately 400 pages each.

There were at least six more inches of back-up information.  It took hours and hours to sort out and complete the application and deal with the follow-up issues.  All of our Medicaid applications have been approved in the past 5 years, but remember I have a law office.  The process is onerous and next to impossible for regular families in crisis to complete on their own.  That is not fair, but it is the real world.

We have no money in this country to continue to provide the safety nets that have been available.

What can you do to protect yourself and your loved ones?

1. Make certain you have up-to-date legal documents that include your Living Will, Health Power of Attorney and Financial Power of Attorney.
2. Let the people you plan to rely upon in a crisis know you have nominated them to help.
3. If you need help, seek it out.  Your failure to make informed decisions may cost you and your family thousands of dollars and unnecessary worry.
4. Contact your government representatives and let them know you want honest safety nets that really work, not ones that exist on paper and are not really accessible to regular people.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Are you thinking about your elderly parents' finances and beginning to worry what you should do to help them in an emergency?

Don't expect your parents to be thrilled at the idea of discussing their finances if they have not been open about this in the past.

If you are lucky, they may bring up the topic.  When my Cousin Kathie was age 90, she called me one day to say she was going to be kicked out of her retirement home because she was two months behind in her rent.  She asked me to call and check.  I looked into it and she was indeed behind in the rent.  Right then and there she asked that I take over her finances, which I did, and I continued to handle her finances until she died at the age of 99.

If you are not so lucky to be asked for your help, you need to start the discussion.  Be careful that you don't come on too strong, because it may be perceived that you want to take their money.  One way to start is to express your concern about your role in an emergency if they should die or worse, they become unable to handle their affairs due to old age, dementia or illness.  If they share the information about what they own, the approximate value, and where their records are located, that would be a huge first step.  If they don't, be patient.  You have opened the door a crack and they may call you later to share this information.

An alternative approach is to suggest you go to a meeting with them at their attorney's office to get independent, unbiased information on alternative ways to handle the health and financial emergencies worrying you.

Of course, if they say no, you are stuck.  You did your best.

If everything goes wrong that could go wrong and there is no plan in place when your parents become mentally or physically unable to handle their affairs, you have the option to go to Court to be appointed as their conservator [the one who handles their finances] and guardian [the one who makes the health and housing decisions].

What can you do?  Start the discussion so everyone is prepared for the bad days in life, death or the possibiity of becoming incompetent.  Good Luck!

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Can you keep up with all the things you think you need to be doing?  No?  Well, NO is my answer!

The leaves are falling, I rake them every day, and in the morning they are back again.  Pooh - I didn't plan to spend the extra half hour each evening doing this chore, so something else had to slide.

How can you get a grip rather than chasing what calls for your attention this moment?

Take some time, even if just 10 minutes, and decide what is important in the big picture "to do" today, this month, this year to get you where you want to go.  Make a list.

In 2008, Congress took a look at the following statistics:

• It is estimated that more than 120 million Americans lack an up-to-date estate plan.
• Two thirds of Americans over age 65 believe they lack the necessary knowledge to plan adequately for retirement.
• Nearly one-half of all Americans are unfamiliar with basic retirement tools, such as a 401(k) plan.

The result was passage of HR 1499 declaring the third full week in October as National Estate Planning Awareness Week.

Now I am telling you this a week late, but even so, the information is a great reminder to focus on the big picture of the important steps to take to make certain you have the best and most secure future that preserves your independence, protects your family and protects your assets.

Check your own estate plan to be certain the documents you have are up to date with the current law and your changing circumstances.  That way you will accomplish your personal goals.

Happy Halloween and pretty Fall to you.

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

This happened for the heiress of L'Oreal, a French cosmetics company.  Liliane Bettencourt is 89.  She and her daughter, Francoise Bettencourt-Meyers, have been suing one another for oyears.  A French Court found the mother to have failing mental healtlh and to be showing signs of dementia.  The Court then appointed the daughter as her mother's guardian.  Now, the daughter can control when her mother can travel and how her money will be managed.¹

Could this happen to you?

A simple way to avoid this is sign a financial power of attorney and health power of attorney stating who you want to make financial and health decisions for you if you are not able to care for yourself.  That will be a great first step.

_________________________

¹Heiress Loses L'Oreal Family Fight.  The Wall Street Journal, Page B8, October 18, 2011.

By:  Susan M. Graham, Certified Elder Law Attorney

Do you want to protect your independence, assets and your family?  There are many steps you can take to make it easier for you and your loved ones when the bad days happen:  death or becoming unable to handle your affairs due to illness.  I encourage you to consult with an attorney to discuss many of the following topics to see which will best fit your needs.

1.  Health Power of Attorney.  Signing this document permits the people you rely upon to talk with your doctor when you can't.

2.  Living Will.  If your death is near, you have 3 choices for your end-of-life medical care:  (a) use all the fancy machines to keep you going, (b) have nutrition and hydration with tubes, or (c) "let me go."  If you fail to sign a "Living Will," the legal and medical rules require that you be on "tubes" at a minimum.

3.  Last Will and Testament.  This document declares how you want your property distributed when you die, and if you have minor children, who will be the guardian.  After a death, the Will is filed with the Probate Court to start the administration of the decedent's estate.

4.  Revocable Trust.  This is an other way to arrange for the management of your assets should you be unable to do so due to illness or when you die.  This document usually allows you to avoid probate or going to court.

5.  Financial Power of Attorney.  This document identifies those people whom you selected to handle some of your finances if you are unable to do so because of illness.

6.  Funeral Arrangements.  Pre-planning your funeral is a gift to your family.  Making your arrangements will assure that you will have what you want and save your family from the worry and burden of such decisions at an impossible time.

7.  Pet Care.  You have the opportunity to write down who you want to be the caretaker for your pet when you are gone, recovering from an illness, or in a rest home.

8.  Beneficiary Designation.  Make certain that the beneficiary designation on all life insurance, annuities and retirement accounts, such as IRAs and a 401(k), match your current estate plan.

9.  Professional Advisors.  List those professionals who know about your affairs.  Include your attorney, accountant, insurance persons, doctors, dentist and others you rely on.

10.  Important Records.  Where do you keep your papers?  Who knows where to look?  Do they have a key, or can they get into your safe deposit box?

11.  Family Information.  Do you have a list of contact information for the family and friends who are important to you?  This information is helpful in an emergency.

12.  The Key to Your House.  Who has one?  Do they know whom to contact in an emergency?

13.  Driving Instructions.  If the time comes that it is no longer safe for you to drive, you can arrange ahead of time how to give up your car and provide for alternate transportation.

By:  Susan M. Graham, Certified Elder Law Attorney

This checklist includes important steps to help manage the estate of someone who has died.

1.  Follow the specific funeral and burial instructions left by the decedent.  Contact your local funeral home or mortuary for assistance in making or following through with any prearranged funeral plan.

2.  Arrange for the care of any persons who were dependent on the decedent, such as minor or disabled children, an elderly spouse or the decedent's elderly relatives.

3.  Arrange for the care of any pets of the decedent.

4.  Secure the residence.  You may want to have some trusted friend stay at the house.  Change the locks.

5.  Arrange to receive several copies of the death certificate - ten is not too many in most cases.

6.  Keep track of your time.  Get receipts for all out-of-pocket expenses you pay related to the estate administration so you can be reimbursed.

7.  Notify the decedent's friends, family members and work associates of the death.

8.  Call the attorney who set up the estate plan to make an appointment and learn how to administer the decedent's estate.  The attorney can tell you who is legally responsible under a Last Will and Testament, Trust, or even if no documents were prepared.  Locate the original Last Will and Tesatment or Trust to take to the attorney if those documents exist.  It is important to talk with an attorney prior to making any decisions relating to the administration of the estate.  Sometimes the wrong decision, taken hastily, can be costly.

9.  Do not distribute any personal property items such as rings, guns, china and other household things until you speak to an attorney.  If you distribute such items and you did not have the legal authority to do so, you may be personally liable to others.

10.  Update your own estate plan to be certain you and your family are protected.  It is important that a surviving spouse make changes now that their spouse has died.  In most situations, it will be necessary to prepare a new financial power of attorney, new health power of attorney and new Last Will and Testament or Trust to reflect any changes to your plan.

The Wall Street Journal listed 25 documents you need before you die.¹

Their subheading was "Design your death dossier soon - or you could be setting up your heirs for frustration and financial pain."

They are right.  If you don't take the time to create a plan  for your future and organize your documents, you are leaving a mess for your family.  If may be impossible for the people you rely upon to help you.  The distribution of your estate may be different than what you want because you may have failed to coordinate beneficiary designations on retirement accounts and life insurance with your total plan.

So what are those 25 documents that you should organize and put in one location so they are easy to find?  I will list them below and add a few items they forgot.

Personal Information:

• Birth Certificate
• Marriage LIcense
• Divorce Papers
• Military Discharge Papers
• Death certificates for other immediate family members (spouse, parents, children)

Health Care:

• Personal and family medical history
• Durable health care power of attorney
• LIving Will
• Physician's Order for Scope of Treatment (POST)
• List of doctors and prescription drugs

Proof of Ownership:

• Housing, land and cemetery deeds
• Mortgage papers
• Proof of loans made and debts owed
• Vehicle titles
• Stock certificates, savings bonds and brokerage accounts
• Partnership and corporate operating agreements
• Tax returns

Life Insurance/Retirement Accounts:

• Life insurance policies
• Individual Retirement Accounts
• 401(k) accounts
• Pension documents
• Annuity contracts

Bank Accounts:

• List of bank accounts
• List of all user names and passwords
• List of safe deposit boxes and keys

Estate Planning Documents:

• Will
• Financial Power of Attorney
• Trust
• Funeral Plan
• Pet Care Instructions
• List of who receives your "stuff" (e.g., ring and gun)

So get a box and start putting all these papers in that box.  If you put in copies, mark on the copy to indicate where the originals are located.

Does this seem too much to do?  Well, think about the people you care for and think about covering your back.  If you want your life to go as well as possible, even during the bad days, you have to do your part.

So take 30-60 minutes and gather up these documents.  Good for you if you do what I suggest!

P.S.  The total is 32 - not 25.

________________

¹The 25 Documents you Need Before You Die.  The Wall Street Journal, July 2, 2011, page B7.

By Joseph S. Karp, Florida Bar Certified Elder Law Attorney

As a Florida elder law attorney, I find many people are confused about Advance Health Care Directives. Of course, that could be because so many people prefer to avoid the topic altogether!  And on a personal level, I understand that:  no one really wants to contemplate the possibility of being disabled and unable to communicate his own health care wishes! Little wonder then that there's a big disconnect between what Americans say and what they do about health planning. According to a 2006 Pew Research study, most Americans think they should be free to manage their own end-of-life decisions, without government interference. But how many of them have a Living Will that would keep them in control of their medical destiny? A paltry 29%.

There was a big uptick in interest in Living Wills and other Advanced Health Care Directives following the Teri Schiavo incident in my home state, but  that sense of urgencyseems to have tapered off. To remind the public of the importance of making plans for health care decisions, April 16 has been declared National Health Care Decisions Day. It's the fourth annual, actually.

Here's a brief explanation of what each type of Advance Health Care Directive does, and the situations to which each apply.

Living Will 

Florida Statutes section 765.03 lays out the rules for Living Wills. A Living Will is not just a "pull the plug" document as many believe: It documents the kinds of treatments you don't want - as well as those you do want - if you are in a terminal or end-stage condition, or in a persistent vegetative state. 

Health Care Power of Attorney

The Health Care Power of Attorney allows you to designate another person to make your medical decisions if you become incapacitated and cannot express your own desires for medical treatment. The disability need not be permanent - for example, you could be under general anesthesia. The Health Care Power of Attorney should also contain language granting your agent and other designated persons the right to receive your confidential medical information. This information is otherwise privileged, pursuant to the federal HIPAA laws.

Do Not Resuscitate Order

A DNRO is signed by a physician stating that you have a terminal illness. The document requests that no resuscitative techniques be used in the event of cardiac or respiratory arrest. .

Pre-Need Guardian 

Guardianship is a court proceeding in which a guardian exercises the legal rights of the incapacitated person who is unable to exercise his own rights.  A Guardian may be an individual, or an institution such as a bank trust department, with the authority granted by the court to care for an incapacitated person and/or the incapacitated person’s assets. You may name a “pre-need” guardian who you wish to make your health care decisions if you ever become the subject of a guardianship. The Florida court genearlly honors such a request unless the pre-need guardian you've designate is found to be unqualified or does not wish to serve.