Estate Planning Archives - Elder Law, Boise Idaho

Long-Term Care/Medicaid: Protecting Assets for the Spouse Who Stays Home

Corey McCool — Mon, 16 Sep 2019 16:14:09 +0000

For many different reasons, people find that their best option is to move into a long-term care facility. There are several different types of facilities. Some of them are for end-of-life care; others are retirement communities. Within those distinctions there are assisted living and independent living communities. All of them have different care options that could be appropriate for different situations. One thing they have in common is that they can be expensive.

Protect Your Assets

70% of senior citizens receive some kind of care. Typically, long term care lasts for an average of three years. In many states, the average cost of nursing home care is close to $100,000 a year. So, if you stay in a care facility for the average amount of time, it could cost you $300,000. Even if you have that amount of money in your savings, you don’t want to spend all of it. That’s especially true if you have a spouse or a loved one who stays home while you’re in long-term care. If you don’t protect your assets, the care facility might attempt to deduct all of those expenses from your assets and your accounts. That would leave your loved ones nothing to live on and no assets for your heirs.

Long-term insurance

Standard health insurance, including Medicare, does not pay for stays in care facilities. For that, you need long-term care (LTC) insurance. Very few seniors have this type of care because it can be expensive. Also, the underwriting standards have become increasingly strenuous. Lastly, the premiums have been rising in recent years. However, if you plan ahead, and apply while you’re healthy, some LTC whole life policies are well worth considering as part of your retirement plan.

But if you’re facing an immediate need for long term care, Medicaid may be your best option. The application process can be challenging, but an elder care attorney will be able to help you qualify through several different methods.

Medicaid

Medicaid is a needs-based program, which means that they have to assess the assets and income of you and your spouse own to determine if you are eligible. This is known as the snapshot date because they take a figurative snapshot of your financial state. So, many senior citizens use their assets to pay off outstanding debts. For example, if you and your spouse have $50,000 saved but medicaid says you can only have $25,000 to qualify for the program, you might spend $25,000 paying off the mortgage on your home. That would put you at the threshold to qualify for medicaid. There are a variety of other options to qualify and this process is sometimes called the “spend down.”

Selling off or transferring ownership of assets is another option, but the five-year look back rule can lead to a penalty, which may jeopardize medicaid eligibility. Moving ownership of assets to your children before filing for Medicaid is especially dangerous and such transfers are carefully scrutinized.

If you have questions about your particular situation, call an elder law attorney. Boise Medicaid attorney Corey McCool, offers a free one hour consultation!

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Do You Really Need a Trust?

Corey McCool — Mon, 19 Aug 2019 15:23:11 +0000

When most people think of probate, they often think of long waits to distribute property after the death of a loved one. They think of an estate tied up for years in court and eaten up with high court costs and lawyers’ fees. While this may be true in some States that is really not the case in Idaho. Here, for an uncontested probate, we have “Informal Probate” where court fees are low and lawyers’ fees should be modest. The Personal Representative usually will not need to attend a hearing and will probably never see a Judge. Probate can be wrapped up in a relatively short time and with reasonable costs. If you think you should get a Trust to avoid probate, in Idaho you should think again. See an experienced estate planning attorney because a simple Will may be all you need.

Conditions where a Trust Should be Considered

If you own real estate outside of Idaho, a Trust may be a good idea. A Trust avoids probate as the property passes through the Trust and court action is not needed. If you own property in more than one State and you die with a Will, then your Personal Representative will have to go through probate in each State where you own property. That could be an expensive hassle.

If you have an heir with heath issues and who is on public assistance, then you should seek legal assistance to set up a “special needs trust.” Leaving money to a person on public assistance, like Medicaid, could jeopardize that assistance and create a lot of unwanted complications.

For families with second marriages, where there are “his kids” and “her kids,” a Trust may be a useful tool. A Trust can be set up to ensure the financial security of each spouse for their life, but then directs the remainder of the estate to be distributed to one’s own kids. This is especially worth considering for couples who marry late in life.

Choosing between a Trust or a simple Will can be a complicated decision. If you have questions concerning this issue or any other estate plan options, you should contact McCool Law for a free initial consultation.

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Estate Planning: Choosing the Right Person to Be Your Personal Representative

Corey McCool — Thu, 15 Aug 2019 16:42:24 +0000

Estate planning is the process by which you make decisions concerning the disposal of your estate after your death. Many people think that they can wait until they are much older to begin estate planning. However, you should begin it as soon as you acquire property, savings, or have children. Even if you don’t have much at the moment, choosing the right personal representative and initiating the process is important. It can always be amended and updated later on.

What They Do

A personal representative can also be called an executor or administrator. A personal representative will handle your probate assets. Some assets like life insurance with a named beneficiary can pass outside probate. The representative will also need to assess the values of your probate assets at the date of death. The definition of a probate asset can change based on your circumstances but it often includes things like real estate and business holdings.

The representative will also obtain date of death values for your belongings. They’ll also handle any outstanding debts or taxes from these assets. They’ll deal with your other debts, including filing your final tax returns. Lastly, the representative will handle the expenses of running your estate and execute your final will. Choosing the right person for this time-consuming and incredibly important task can be difficult.

Choosing a Representative

You can often hire a professional to be your personal representative, but many people choose someone they trust. Your estate planning attorney can help you determine who would be the best choice to be your Personal Representative. The person should be someone you trust and who can dedicate the amount of time required by the project.

A great deal of the work of being an executor will have to be accomplished face to face. There are visits to different government offices and agencies, especially if your estate is large and/or complicated. That means that the person you choose should be physically near your location or at least capable of getting there quickly.

Someone with some legal experience could be a bonus as well. The Personal Representative can hire an attorney but having an executor who understands the legal ramifications of certain actions is beneficial.

Most importantly, you need to pick someone who is reliable. This should be someone you know from a personal or a professional relationship. They need to be trustworthy with your money and your belongings.

Have questions about choosing a personal representative? Call Boise estate planning attorneys at McCool Law today to schedule your initial consultation.

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Living Wills and POST: Know the Difference

Corey McCool — Wed, 24 Jul 2019 15:01:36 +0000

Too often when people think of estate planning, they think only of writing their will, but really estate planning should include Advance Directives, the Living Will, Durable Powers of Attorney, and in some cases the “Physicians Order for Scope of Treatment” or POST. Completion of the Advance Directive (AD) is not just a quick add on in the Estate Planning process. Arguably, decisions made for your Advance Directive can be more important than your Will since your Will only takes effect after your death while the AD can have important consequences while you’re alive.

Wills vs POST

The Living Will and the POST may seem similar, but they are quite different in important ways. Every person, whether healthy or not, should have a Living Will. It provides general directions about end of life treatment for a person who is noncommunicative and terminally ill. A perfectly healthy person could unexpectedly have a medical emergency and have need of a Living Will. The POST is only for people who are very frail and approaching end of life care. The POST is an order restricting treatment for a person who knows how they will likely die. A strong healthy person should never have a POST as it may preclude life saving treatments. The Living Will and the POST are similar but dangerously different. This video dramatization portrays the correct use of the POLST: https://www.youtube.com/watch?v=LoGM-ayzKc0

Seek Professional Help

Generic versions of many of these forms are available online for free or very low cost. However, it is highly advisable to seek guidance from an elder law attorney. A professional can help you tailor these documents to match your values rather than trying to find a “one size fits all” form. These decisions should be discussed with family and friends. Take the time to make the right choice. Should you have questions about these issues, contact McCool Law at 208-963-8100.

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Supported Decision Making Can Limit Guardianship

Corey McCool — Tue, 16 Jul 2019 01:14:58 +0000

Dementia and other types of cognitive decline are often thought of as a progressive and steady decline in faculties. However, that’s not always the case. There are some areas where a person might see accelerated decline. Other areas might remain unaffected. There are days that are worse than others or even times of day that are worse than others. All of this can be complex and difficult to navigate. That’s why so many people choose guardianship to protect someone who has dementia. However, supported decision making has been growing in popularity with many caregivers for the Developmentally Disabled and it is a model that can be used when working with loved ones with dementia.

What Is Guardianship?

Guardianship is a legal arrangement not dissimilar from being the legal guardian of a minor. Someone who is a guardian for someone with dementia will make all of the consequential decisions for someone else. For example, if they decide to sell someone’s car, the guardian would be allowed to make that decision. The actual owner of the car, the person with dementia, might not have a say in it. Oftentimes, children become guardians for aging parents. While guardianship is used to protect a loved, it is a severe restriction of their independence and liberty.

Full guardianship is not always the right choice. It can actually encourage dependence, depression, and resentment. Instead, the Court can order a limited guardianship with supported decision making, which will still protect the loved one but still preserve their dignity.

What Is Supported Decision Making?

Supported decision making is exactly what it sounds like. Someone with a disability agrees to allow another person or persons help them make decisions. They will retain their civil rights and privileges, though. For example, a person with dementia might want to sell her car. In a supported decision-making system, the person with dementia would ask for advice on whether or not to sell the car. The other person would be able to help them make that decision and possibly even negotiate with the dealership about the sale.

A supported decision-making arrangement can be official or unofficial. If the other person needs to have legal rights to negotiate or make decisions, then an official arrangement would be needed. If it’s an informal arrangement, the person needs to be just a trusted individual.

Seeking Legal Advice

The best way to determine what type of arrangement is right for you and your loved ones is to contact a lawyer who works with disability and dementia. An elder law attorney will understand these different legal options in a very nuanced way. They’ll be able to talk you through the best options. Call McCool Law today for a free initial consultation.

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Sooner Is Better Than Later to Set up Your Living Will and Choose a Healthcare Decision Maker

Corey McCool — Wed, 12 Jun 2019 15:56:31 +0000

Every day in a hospital near you, a patient is non-responsive or near death and unable to make decisions for themselves. And often, there is confusion about the patient’s wishes because they never communicated their desires or nominated a decision maker. Sadly, this confusion can lead to ugly family fights. This leaves the patient in a legal gray area that is not only difficult to navigate but can lead to expensive Court fights If you’re married, your spouse will have the power in most places to make healthcare decisions. However, you still need to inform them of your preferences before becoming ill.

Living Wills

A living will sounds similar to the final will and testament but it is fundamentally different. Living wills are also called directives to physicians or advance directives. They are essentially directions to a doctor and medical staff about how you would like to be treated if you were not able to articulate your desires while in the hospital. Medical decisions are frequently legal decisions that carry the responsibilities required of entering contracts. If you are not competent to enter a legal contract, then you’re likely not competent to make medical decisions. That’s why it’s so important to have a living will.

The living will is your chance to let your family know what you would like to happen. They are often paired with durable power of attorney forms.

Durable Power of Attorney

Some jurisdictions might call it something different but durable power of attorney is an authority given to someone to make decisions on your behalf. What makes them “durable” is that the power continues even if you lose capacity. Power of attorney determinations can be narrow or broad. If you are looking to just allow someone to make decisions based on healthcare while you are incapacitated, you can have the agreement written that way. In other cases, you might want someone to have complete, or limited, control over your finances and your businesses as well.

For example, if you are placed under anesthesia for surgery, you might grant medical power of attorney to someone in the event that something goes awry. However, if you run a business, you might also give them, or someone else, the power to make business decisions. You can and probably should have more than one power of attorney.

Make Early Decisions

All of these decisions have to be made before you are incapacitated. If you have a scheduled surgery, then you know the date before which you have to make a decision. Accidents cannot be anticipated, though; that’s why it’s important to clear all of this up as soon as possible. Call an attorney who has experience with these types of documents for advice. In Boise, call McCool Law and schedule a free consultation. 208-963-8100.

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Why should you get a Power of Attorney?

Corey McCool — Mon, 20 May 2019 21:12:40 +0000

In Idaho, there are two types of Power of Attorney, the Medical Power of Attorney
(MPOA), and the general POA (POA). The MPOA is usually accomplished along with
the Living Will, and it gives the power to the person of your choice to give or deny
consent for medical procedures in the event you are unable to give consent due to a lack
of capacity. The general POA allows the person of your choice to handle your finances
for you, which ranges from paying your electric bill to selling your house. You could
have the same person hold both types of POA, but they really involve two distinct skills.
For the general POA, you want a person who is detail oriented, keeps good records, and
above all is trustworthy. For the MPOA, you want someone who knows what your wishes
are concerning how you want to die, and has the courage to make some tough medical
decisions.

Nominating your POA is Important

It can be important to nominate the person you want to be your MPOA. If you fail to
nominate your MPOA, the State of Idaho will do it for you. This is called surrogate
decision maker. The order of priority is spouse, adult child, parent, and adult sibling. In a
medical crisis, not having a MPOA can work fine as long your family is in agreement,
but if there is disagreement, it can be very expensive and families can be torn apart. Do
your family a great favor by completing both your Living Will and nominating your
MPOA.

What Happens if the Courts Get Involved

Creating a general POA can actually be more important that a MPOA. This is because, in
Idaho, if a person has not nominated a POA, then the only way financial transactions can
be accomplished is by having the Court appoint a Conservator. In the event someone
lacks capacity, maybe they had a stroke or suffer from dementia, their family will not be
able to make necessary financial transactions to apply for government benefits or obtain
long term care until the Court appoints a conservator. This involves a court hearing, can
be expensive and time consuming. This whole process can add unnecessary stress and
tension in the midst of a medical emergency. And so, everyone should do some good life
planning and nominate their general POA and their MPOA while they are still healthy.

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Signs That It Might Be Time to Seek Help for Your Elderly Parent Including Guardianship

Corey McCool — Thu, 18 Apr 2019 15:55:07 +0000

It’s a sad truth that many of us will face one day. Determining if, and when, your parent needs a guardianship. The guardianship is sometimes put into place to protect the senior from inadvertently harming themselves. Forgetting the small things may seem small to the elderly but often pose a serious risk. As the population continues to age, “the graying of America,” dementia is becoming increasingly common. Guardianship is a serious step involving taking away a person’s fundamental rights, but when dementia robs a person’s ability to understand the consequences of their choices, then intervention may be required. Fortunately, a range of options are available from power of attorney, supportive decision making, conservatorship, and guardianship. It is a good idea to seek guidance from an elder law attorney to know what options are appropriate for your family’s situation.

Here are a few signs to watch for that signal that your parent may need help.

Forgetting Medications

Many of us depend on daily medications to live a complete and healthy life. Whether you take blood pressure medication, cholesterol controlling medication or a narcotic for pain, maintaining proper dosages are important. If your loved one is struggling to maintain their medication schedule, they could be in real danger. A recent article focusing on the importance of correctly taking medications pointed out that, “four out of 10 older people who take more than one drug still do not take one or more of their prescriptions according to their doctor’s instructions.“ If you feel your loved one is not taking their medicine as prescribed, they may need a guardian to help them.

Lacking Personal Hygiene

Changes in personal hygiene may be a sign of bigger issues. Depression is very common among the aged and could be triggering the change in hygiene. However, it could also indicate even greater issues such as dementia or Alzheimer’s. The senior community also faces limited mobility in many cases, making it more difficult to properly clean themselves. Regardless of the cause, a noticeable change in personal hygiene should raise a flag to those around them that a senior may need help.

Mismanaging Personal Finances

Scam artists often target the elderly community because they believe they have disposable income that may be easier to acquire than their younger counterparts. Unfortunately, not all scam artists are strangers to their victims. According to an article from the National Council on Aging, “Over 90% of all reported elder abuse is committed by an older person’s own family members, most often their adult children, followed by grandchildren, nieces and nephews, and others.” It can be difficult to know who to trust. Financial scams apply to seniors that are “well off” and those on fixed incomes. Protecting their finances would be another good reason to setup a conservatorship.

If you have any questions about guardianships, conservatorships or other protective measures concerning the elderly, feel free to call McCool Law today at 208-963-8100.

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