I have met with a number of children who would like to enter into Medicaid and Nursing Home Planning for their incompetent parent. They want to do so using a General Durable Power of Attorney prepared by another attorney many years ago. After a review of the document, I have to inform them that they are severely restricted by the language of that particular power of attorney. They are surprised to hear that all power of attorney documents are not prepared alike. The fact is, power of attorney documents are not simple forms that can be trusted to allow you to do everything.
Power of Attorney documents in Pennsylvania (PA) and most states must be tailored to allow an Agent to handle specific functions. You cannot simply say that your Agent can, “Do everything I can do.” Actions taken by an Agent that are not specifically authorized under the power of attorney document can be voided. Therefore, an Agent must be specifically authorized to enter into Medicaid Asset Protection Planning. This Medicaid planning power will include, among other things, the power to make unlimited gifts and to impoverish the person who granted the power of attorney. Obviously, a parent has to be secure that the child or children will act prudently when exercising this power.
You must pull that old general power of attorney document out and review the powers granted. If it does not include Medicaid and Nursing Home Asset Protection powers, you must update your document with a knowledgeable Elder Law attorney. This will insure that the Agent will be able to execute the Elder Law Plan when the time is right.
