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Travel Tips for Seniors, by guest blogger, Lois G. Tager, M. Ed., CSA, Director of Geriatric Care Management at the Law Office of Roy W. Litherland
As the holiday season approaches, families often travel from one destination to another. Preparing beforehand for traveling with a senior will save many anxious hours before and during your trip and allow you to enjoy your holiday.
Airline travel preparedness will save you many moments of anxiety and exhaustion. Wendy Perrin, Conde Nast Traveler’s Consumer Travel Expert, tells us to be sure to confirm your flights at least 72 hours prior to your departure. Did you know that if you do not confirm your flight 72 hours prior to the flight and there is a change of departure time and you miss your flight, you may not be reimbursed for the missed flight?
Make copies of your itinerary and give one to someone you trust and who needs to know where you are staying; one for your suitcase and one for you to carry. Anyone with a medical condition should have a list of medications and the names and telephone numbers of your physicians in the event of a medical problem when away from home. This will also allow for a quick replacement if medications are lost.
If you are traveling with a senior who does not have proper identification such as a passport or license, an ID card can be obtained at the local Department of Motor Vehicles. To go through security, one must have a valid state or federal issued ID. If it is not possible to get to the DMV, a birth certificate and credit card may be accepted. Check with your airline to be sure that they will be accepted. Out of date passports and driver’s licenses are not accepted by the government which handles security.
If you need a wheelchair, ask the baggage handler when you check-in at curbside. One will be provided along with an attendant to help you to the gate. If a restroom is needed, the attendant will wait until you return to the wheelchair. If your loved one needs to be accompanied into the restroom, there are family restrooms available. It is especially helpful when a female is accompanying a male who needs help or vice a versa.
If it is necessary to carry oxygen onto the plane, one must obtain a “Physician Consent Form for Individual Who Needs to Use a Portable Oxygen Concentrator During a Flight”. The form must have the heading of the physician writing the consent form. The form may be obtained on most airline websites under “Travel Tools or Policies”.
Staying healthy while traveling is a challenge but there are few steps you can take to protect yourself and your loved one against airborne germs and other in-flight hazards. Bring along disinfectant wipes for the arms and tray tables.
- Combat Dehydration – The air on planes is very dry. The low humidity dehydrates your body, which can cause excessive fatigue and jet lag and irritate upper respiratory passages, making them more susceptible to infection. Drink plenty of water in-flight, at least eight ounces per hour is recommended. Contact-lens wearers should be sure to take eye drops because dehydration reduces tear volume.
- Keep Your Legs Happy – Both pressure changes and cramped seats cause feet and ankles to swell. Don’t wear new or tight shoes or cross your legs. Take hourly walks through the cabin. Take off your shoes and elevate your feet if possible.
- Avoid hunger – Bring along nutritious snacks – a sandwich, an apple, a granola bar or cheese. If you are traveling with a diabetic, be sure to have foods available on long fights. Crackers and sugary snacks served occasionally by the airline are often inappropriate for diabetics.
If you are traveling with a loved one who suffers from dementia, be sure not to leave your loved one alone – at any time. People with dementia often cannot follow directions and many a person has been lost when left on their own even for a few minutes.
Renting a car allows you the freedom to choose where and what you are going to see but it also can cause a great deal of stress. Once again, plan ahead. Be sure you have rented a car with a confirmation number prior to boarding your flight and do not forget to bring the confirmation number with you. Whether it is a domestic rental or foreign rental, be sure to double check prior to leaving for your trip. When arriving at your destination, read the fine print in the contract. Not all contracts are alike and even though it is exhausting be aware that it is a binding contract and changes can be very costly.
Do not over pack! Take only what is needed; choose a basic color such as black and add accessories to change the look such as colorful tops and a jacket or two. Be sure to check the weather in your destination city so you will have the correct clothing. Leave expensive jewelry at home if you are traveling overseas and place what you are leaving at home in a safe place like a safe-deposit box. If possible, do not pack clothing or anything else that you cannot afford to lose. Traveling light is traveling smart!
The holidays represent the busiest time for the airlines and the greatest number of travelers. Therefore, arrive early at the airport, well prepared and patient. Have a great holiday trip!
References:
Secrets Every Smart Traveler Should Know by Wendy Perrin. Fodor’s Travel Publications, Inc., 1997
The Seasoned Traveler by George Bauer. Morris Book Publishing, LLC. 2006
Southwest Airlines, Policies and Tools
Stocks in the Name of Deceased Spouse
A client recently presented me with the following factual situation. Her father, a California resident, had approximately $150,000 of stocks held in his individual name at the time of his death. His wife (the client’s mother) survived him, and the stocks were acquired during the marriage using community property funds. Her father had written a Will, but no Living Trust. The company issuing the stocks would not transfer title of the stock to the surviving spouse, even though it was presented with a copy of the Will leaving everything to the surviving spouse. Based upon those assumptions, my analysis was as follows:
- First check with the organization’s transfer agent responsible for handling transfers of the stock in question to assure that there is no “pay on death” beneficiary designated who would take title to the assets merely upon proving that the owner is now deceased.
- Assuming there is no POD beneficiary designated, your options are:
- Bring a “spousal set aside” petition before the Superior Court in the county where your father resided. This is a procedure permitted by California Probate Code Section 13650 et seq. and can be achieved much more quickly and less expensively than probate. List all assets you want to have the court determine were community property and ask the court to order title confirmed to your mother; or
- File a petition to probate your father’s will.
Optional Claims Procedures for Trust Administration
One of the major advantages of having a living trust is that upon death, assets of the trust are not subject to the probate process. But occasionally there are situations where probate might be an advantage. One of those would be where the decedent has legal obligations that are unknown or undefined. The decedent’s creditors would have a right to bring suit to collect on their claims against the trust for one year after the decedent’s death. If the decedent’s estate were being probated, the creditors would have only four months to file their claims.
Thus in the instance where the estate is held in a trust, the trustee may want to withhold distribution until after the one year statute of limitations has run so they are not faced with the possibility of having to recover distributions made in order to pay lawful claims of the estate. In such a circumstance the trustee may want to consider availing themselves of the optional claims procedure permitted by Probate Code Section 19000 through 19403. Under this procedure, the trustee can file formal documents with the court, serve copies on creditors, and the creditors will only have four months to file a claim, thus opening the way for distributions to be made without waiting for one year.
Use of a Special Needs Trust to Shelter an Inherited Home
I was recently asked to address the following fact situation. Mother is elderly and in failing health with limited assets other than the family home. Should she need to be admitted to a skilled nursing facility, it is likely Medi-Cal would end up footing the bill. Daughter is disabled, receives public assistance and wants to know if there is any way she can inherit the home without impacting her public benefits. My response was as follows:
If your mother goes into a skilled nursing facility (“SNF”) and Medi-Cal (“DHCS”) helps pay for that cost, upon your mother’s death, the DHCS has the right to file a claim against her estate and recover whatever has been paid out on her behalf. If your mother owns a home at the time of her death, the typical technique is for the DHCS to enforce a Medi-Cal recovery lien compelling the home to be sold so they can make their recovery. However, none of that should be of concern for you.
The Medi-Cal recovery rules provide that if any of your mother’s children are disabled at the time of her death, there is no recovery. And that is true whether she leaves the home to you or not. One option is to do nothing because if you are disabled within the definition of the Social Security Act, there will be no recovery.
But there is the option of your mother transferring the home to you in a Supplemental (Special) Needs Trust (“SNT”). The SNT could hold title to the home for your benefit. One of the major advantages of doing so is that the home and other assets of the home would be protected from your creditors during your lifetime, and upon your death, would avoid any claim for recovery by the DHCS for benefits you received. Also, the home held in the SNT could be sold, and the proceeds used for your care without negatively impacting your qualification for public assistance, whereas if you own the home directly (which is an exempt asset for purposes of qualification) and you sell the home, your receipt of the proceeds would result in you losing your public assistance. Therefore, my recommendation is that you speak to your mother about creating a SNT for your benefit.
Beneficiary’s Rights to Trust Copy and Accountings
Under California law, when a decedent dies and their living trust become irrevocable, the trustee is required by Probate Code Section 16061.7 to give any beneficiary notice of that fact and advise that the beneficiary has a right to receive a copy of the trust and periodic accountings and that the beneficiary has the right to contest the trust within 120 days after receipt of such notice. Having received no such notice, the beneficiary’s right to contest the trust is four years unless there are other factors involved, such as they were a minor until recently.
Contesting the trust may be in violation of a “no contest clause” which would result in the beneficiary losing their inheritance.
Probate Code Section 16062 provides that if a trust was executed after 7/1/1987, the trustee shall account to the beneficiaries of a trust at least annually. The required contents of any such account are set forth in Probate Code Section 16063. Probate Code Section 17200 authorizes a beneficiary to obtain a court order compelling a trustee to account if a written demand for an accounting has been made, and more than 60 days have passed.
Rights of a Surviving Spouse
What are the legal rights of a surviving spouse to the deceased spouse’s assets where the decedent spouse leaves the bulk of his/her estate to a child from a prior marriage?
California is a community property state. Many people are confused about what constitutes community property. Basically, community property is everything a married couple acquires as a result of their labors commencing with the date of marriage. Community property does not include many things, such as separate property owned by one spouse prior to the marriage, gifts and inheritance received by one spouse before or during the marriage, and personal injury awards.
A decedent has the legal right to dispose of their separate property and their share of the community property however they chose, including disinheriting their spouse and leaving those assets to someone else, such as children by a prior marriage. But that is not the final answer. First, you must determine what is separate versus community property.
If there is a marital agreement (post-nuptial or prenuptial), that agreement will likely define the rights of the spouses to the assets. Absent such an agreement, the rights of the parties will be controlled by state law. For instance, Husband (“H”) and Wife (“W”) get married and do not sign a marital agreement, and H owns a business as his separate property at the time of the marriage.
Thereafter W works closely with H in the conduct of that business. It is likely to be found factually that the business has been converted (at least in part) to community property so that H can’t dispose of the community property interest acquired by W after the marriage, only his share.
Or, using the same example, assume H owned a home as his sole and separate property at the time of his marriage to W, but after the marriage, H and W used their combined earnings (community property) to make the mortgage payments. Upon H’s death, the home is likely to be found to be a commingled asset, partially owned by H as his separate property and partial owned by H and W as their community property.
There are lots of these types of questions to be asked.
In addition, the surviving spouse might have a claim against the estate of the decedent based upon financial need. In that event, a probate court proceeding can be brought to enforce a homestead right (the right to support) on behalf of the survivor which would become a debt of the decedent’s estate to be paid from the decedent’s trust assets.
The bottom line is: A surviving spouse may have substantial rights which are not properly addressed by the deceased spouse’s estate plan. You would need to discuss the details of your marriage with competent legal counsel to determine what your rights are and how to best pursue those rights. You should also be concerned with the possibility that bringing any action to pursue those “rights” may violate the terms of any “no contest clause” contained in the estate plan which could possibly result in you losing any right to inherit, including anything left to you. Therefore, you should approach this very carefully.
Probate of Testamentary Trust
What state laws apply to a decedent’s Will?
Well, it depends.
First, many states have laws which require the filing, recording or lodging of a Will after the decedent’s death. On that issue, the law of the state where the decedent was residing applies.
But where do you bring the probate action?
Real property must be probated in the courts of the state where the real property is located. For instance, if a Colorado resident dies owning real and personal property, a probate proceeding is likely to be required in Colorado as well as the state where the real property is located. If the Colorado resident owned a $250,000 brokerage account and a piece of real property in California, it is possible a probate proceeding would have to be brought in both Colorado (to probate the personal property) and California (to probate the real property located there). In this instance the California proceeding would be considered an “ancillary” probate proceeding with all of the assets being ultimately turned over to the Colorado court for final disposition.
In the above example, if the assets of the decedent, other than the real property, were not of great enough value to require a probate proceeding, then the only probate proceeding required would occur in California. But then, what law would apply? If the decedent’s Will included a provision providing which state’s laws would apply, that provision would prevail.
Medi-Cal and Same Sex Relationships
I thought I might take a minute to update you on the issue of same sex partnerships/marriages and qualification for Medi-Cal as well as the Medi-Cal recovery rules.
Eligibility
First, we need to distinguish between the Federal programs and California programs. All Federal programs are governed by Federal law, specifically the Defense of Marriage Act of 1996 (“DOMA”). That act prohibits any Federal program from recognizing same sex marriages/partnerships. So for purposes of determining Social Security benefits, SSI, SSDI, and Medicaid, same sex marriages/partnerships are disregarded.
However, these relationships are recognized for purposes of all “state only” programs, such as the:
- Dialysis Program;
- Total Parental Nutrition Program;
- Medically Indigent Adults in Long-Term Care (not linked to a Federal program);
- Minor Consent Program; and
- Breast and Cervical Cancer Treatment Program.
Due to the limited scope of these programs, the application of the California same sex marriage/partnership rules will be of little significance. However, these same rules also apply to the CalWorks program. CalWorks is a program designed to provide a safety net for families with children. If the family (which includes registered domestic partners and same sex marriages) has children or are pregnant and either 1) One or both of the parents are absent from the home, deceased or disabled, or 2) Both parents are in the home but the principal wage earner is either unemployed or working less than 100 hours per month, and the family has less than $2,000 of non-exempt assets, the family will qualify for a variety of public assistance.
Recovery
Under many circumstances when a Medi-Cal recipient passes away, their estate is subject to a claim by the Department of Health Care Services for the benefits they have received. But under the Federal law, these claims may not be recovered under a variety of circumstances including if there is a surviving spouse. Although who qualifies as a “surviving spouse” is again controlled by Federal law, it appears the DHCS is informally treating survivors of registered domestic partnerships and same sex marriages as surviving spouses and applying appropriate exemptions.
It is also noteworthy that in a recent pronouncement from the (Federal) Centers for Medicare and Medicaid Services the director stated:
A State can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home.
And
The exemptions for transferring assets to a spouse cannot be directly applied to same-sex spouses or partners as a result of [Defense of Marriage Act of 1996]. . . . However, under section 1917(c)(2)(D) of the Act, a transfer of assets penalty period will not be applied if the State determines, under procedures established by the State, that denial of eligibility would create an undue hardship.
For purposes of applying this rule, the legal relationship between the deceased Medi-Cal recipient and the survivor is not limited to someone “married” as defined by Federal law.
Decedent’s Credit Card Debt
I was recently asked to address the question of whether or not a surviving spouse is liable for a deceased spouse’s credit card debt.
Assuming this is a small estate and there is no probate estate or a trust holding assets, the following three questions need to be answered:
First, are you contractually liable for any of the credit card debts? If you and your spouse applied for the credit cards using your joint credit (applied for the card jointly), then both of you are liable for the debt. If one of you does not pay the debt, the other of you remains liable for the entire debt.
Second, are you liable for the debt as a result of receiving assets from your spouse? Ignoring jointly held accounts and accounts on which you were designated as the pay on death beneficiary, if your spouse had any assets in his or her separate name and you were able to acquire those by using a “Small Estates Affidavit” pursuant to California Probate Code Section 13100, then you are liable for their debts to the extent of the value of assets you received.
Third, are you liable for the debt due to your legal obligation to provide your spouse with the basic necessities of life? If some of the credit card debt was incurred to purchase food or provide medical care, it is arguable that you are liable for the debt to the extent the cards were used for that purpose. However, the reality is that a credit card issuer is unlikely to bother sorting out the purpose of each credit card purchase, so it is unlikely the issuer will pursue you for the debt based on the criteria that certain purchases were made for basic necessities.
