Lisa M. Powers, a partner and member of the firm’s Trusts and Estates Practice Group, was featured in the Rochester Business Journal’s Senior Living / Elder Care Focus with her article, “Five reasons why a power of attorney may fail in Medicaid planning (especially in New York).”
“When it comes to Medicaid planning in New York, not all Powers of Attorney are created equal,” she wrote. “A standard POA, especially if it is simply the form included online with the governing statute, can be dangerously insufficient if it lacks the right authority and flexibility.”
Qualifying for Medicaid often requires strategic asset transfers, such as gifts, trusts or exempt assets. Without explicit gifting authority, Lisa noted, an agent may be unable to act.
New York’s POA law also has technical requirements for major gifts, execution and notarization. Without proper drafting, financial institutions may reject transactions or agents may be unable to implement a Medicaid plan.
Timing matters too. If Medicaid planning is needed after the individual loses capacity and the POA is insufficient, families may need to pursue guardianship – an expensive, time-consuming court process.
“Too often, families wait until there is a crisis to reach out for assistance with creating a suitable POA,” she wrote. “If a loved one receives any kind of dementia diagnosis, act immediately, as they may decline quickly.”
Lisa emphasized that a well-drafted POA should allow for changing strategies, such as trust planning, beneficiary designation changes and Medicaid crisis planning.
“A Power of Attorney is not just about who is empowered to act, but what they are empowered to do,” Lisa concluded. “A well-drafted POA with gifting authority and flexibility can preserve options and avoid costly court involvement.”
Lisa specializes in elder law, estate planning and estate and trust administration. Read the full article to learn more.
