Not all Durable Powers of Attorney are created equal!
Updated: Apr 18
Why a proper elder law POA is important.
Powers of attorney remain one of the most important components of a Medicaid and Estate planning engagement. It is a legal document in which you give another person legal authority to act for you. A Durable Power of Attorney generally authorizes your agent to act now and to continue to act for you after you have become incapacitated. This might include paying your bills, managing your property, and handling other money matters. The purpose of this blog is to highlight the importance of a financial power of attorney (I will blog about health care powers of attorneys in a separate posting).
If you become incapacitated and do NOT have a Durable Power of Attorney in effect, it may be necessary for your family or friends to go to court for a Guardianship proceeding in order to appoint someone to make decisions on your behalf, both a time consuming and expensive process. Furthermore, when the court appoints a guardian, you may not have the person making the decisions for you that you would have chosen. A Durable Power of Attorney authorizes your agent to continue to act for you after you have become incapacitated. This document ends at your death. Under Florida law it takes effect as soon as you sign it. The authorities provided to your agent can be very specific or very general, and you can give the agent role to anyone you choose. It might be your spouse, child, relative, or friend. Many attorneys, even experienced estate planning practitioners will simply use their form document without specifically referencing many of the authorities and techniques we utilize as elder law attorneys to allow the agent to carry out principal’s wishes as to long term care planning and obtaining governmental benefits, such as Medicaid nursing home or ALF waiver benefits. In October 2011, Florida enacted very important changes to its Power of Attorney statute (Florida Statutes Chapter 709). As such this is no longer a general, all encompassing durable power of attorney that allows you to “have all the powers to do everything or anything as if I were Mom/Dad/Prospective Medicaid Applicant”. One the most important changes/impacts on post 2011 Durable Powers of Attorney law changes includes the fact that specific authorities must be individually initialed/authorized by the document signor. The list of specific powers requiring separate initialing can be found under Florida Statute 709.2202. As it relates to Medicaid planning and elder law clients some of the most critical specific authorized powers include the ability to create an intervivos trust (revocable or irrevocable, amend trusts, and ability to change beneficiary designations. When I review documents drafted by another lawyer, I’m specifically want to see provisions that allow my client’s agent to create irrevocable trusts such as qualified income trusts or special need trusts, enter into personal services or care contracts, deal with real estate, and powers give my client’s agent the ability to apply for public benefits like Medicaid. Whether the client is looking for Institutional Care Program (ICP) benefits for a nursing home resident or Long Term Care benefits for at-home or ALF care (HCBW), these powers are critical for enabling a client and their agent to apply for and receive Medicaid benefits. When we prepare Medicaid applications, we include a copy of the Durable Power of Attorney to the case worker handling the file and the last thing we wa