Is Your Power of Attorney Good Enough?

When someone mentions that they have a power of attorney for their parent, most people assume they know what that means. In reality, if you put two power of attorney documents side by side they can be extremely different from each other and one document may allow one family to complete certain transactions that another power of attorney does not allow the other family to complete.

In the real world, this can result in one family protecting assets and qualifying for Medicaid quicker while the family with the inadequate power of attorney document is left jumping through hoops, spending more money, and in many cases unable to protect assets unless the parent is still well enough to sign a new power of attorney document. What kind of power of attorney do you have?

The Problem

The person acting under the power of attorney document is limited to take only those actions authorized in the document. If the power of attorney document does not say the agent (usually a family member like a son or daughter) can take the proposed action for the principal (usually the parent), then you might not be able to do it. Omissions from generic power of attorney documents often restrict or even prevent some asset protection options when families come to me to help them protect assets and qualify for Medicaid. An inadequate power of attorney can also make it difficult or impossible to establish Medicaid eligibility if the nursing home resident needs a Miller Trust because their income is above the eligibility limit.

The Solution

You can avoid these problems by making sure any powers you need to have are specifically included in the power of attorney document. If you are not sure which powers you need to include, then it would be a good idea to work with an experienced Woodlands Elder Law Attorney like myself. Do not make the mistake of believing every power of attorney document is the same and will give you unrestricted authority to do what you need to do. Although not true in every case, in my experience the more generic and fill in the blank a power of attorney document is the more likely it will be inadequate if you need me to help you protect assets and qualify for Medicaid. If it is custom drafted by a licensed Elder Law Attorney that knows your goals then it should be drafted correctly to avoid the kinds of problems discussed above.

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