Avoiding Powerless Powers Of Attorney.
March 18, 2013
By Rick Law, Senior Estate Planner in Chicago, IL
Almost every month of the year, I am invited to teach other lawyers at a continuing legal education forum. The typical invitation comes from either a county bar association or a national legal organization.
My most requested class is entitled “Elder Law for Every Lawyer.” In that class I share the concept about powerful powers of attorney for property between a husband and a wife. Please understand that most of the people who come to my office are couples who have had long marriages and usually are parents.
Most powers of attorney created by lawyers in our area use the Illinois statutory power of attorney for property as the foundational document. You can find this document by typing these words into your internet search engine: “Illinois statutory power of attorney property.” The latest version became effective on July 1, 2011.
It has been my experience that most attorneys are familiar with the power of attorney for property form, but they are not familiar with the very special and important issues that confront a couple when one of them receives a diagnosis of dementia, Alzheimer’s disease, Parkinson’s, ALS, MS, etc.
I was trained as a tax attorney. My job until the year 2000 had been focused on helping successful people arrange their personal and business matters to be tax-efficient. In addition, estate plans for the well-to-do have three primary goals:
- Minimize or eliminate estate taxes
- Avoid the costs and delays of courtroom probate
- Provide for ease of post-death distribution of assets
In the year 2000, I received a call from a family friend, Luise, that would change my professional life. She was panicked when she said, “Rick, Bob has been diagnosed with Alzheimer’s. What are we going to do? Am I going to lose my home? Are we going to lose everything?”
I had never been asked these questions before, and my tax law training in high-net-worth estate planning was irrelevant. She needed solutions that would:
- Provide Alzheimer’s care for her husband Bob
- Protect the marital home for her, the healthy spouse
- Preserve sufficient resources to protect her lifestyle
Unfortunately, Medicare provides only acute care reimbursement for citizens over 65, blind or disabled. Long-term care at home or in a facility is not covered by Medicare.
Medicare provides care only when you can get better. If your diagnosis requires long-term care, then Medicare does not care!
Nursing home costs are usually paid for either from one’s own savings or by the federal-state hybrid called Medicaid. Sadly, Medicaid benefits are based on a poverty concept. There are very strict limits regarding maximum dollar value of assets and monthly income. Thanks to Luise and Bob, I now concentrate my law practice on aging issues and long-term care.
This is what you need to know about powers of attorney for a 60-year-old or older adult. An attorney who focuses his/her practice in elder law and estate planning knows how to add nursing home Medicaid-specific powers to empower your trusted spouse/agent to be able to do the following things, under the guidance of your legal counsel:
- Use gifting powers, consistent with your estate plan, to effectuate appropriate asset protection;
- Take all reasonable and prudent actions allowable under Medicaid law to qualify the ill person for care, but also avoid doing anything that would make the ill person ineligible for benefits;
- If appropriate, encourage an adult child to move into the home as a caretaker;
- Allow a caretaker child to be paid a market rate for care;
- Create and fund a special needs trust to provide you with dignity and supplemental monies, even though you may be receiving nursing home Medicaid;
- And much more, subject to each client’s circumstances and the law
If your power of attorney for property lacks these powers – and 99.99 percent of the time a person’s power of attorney does lack these powers – then you need to get a more powerful power of attorney!
Too many families needlessly lose everything they have. Don’t let that be you. If you need help building a fortress around your estate to protect it from creditors, predators, and the cost of chronic disease, give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Appointments available in Chicago, Aurora, Oak Brook, Schaumburg, and Joliet. Call 800-310-3100 for your free consultation now!