Durable Power of Attorney Helps Largo Seniors Plan for Incapacity
The durable power of attorney plays a central role in our Largo elder law and estate planning services. As a Florida Medicaid planning attorney, I work with seniors and their families to help them handle incapacity while preserving their income and assets, and other vital matters of advancing age.
The durable power of attorney, or DPOA, is a legal document that authorizes someone you trust to act as your agent, giving that person the authority to act on your behalf even if you become incapacitated.
To understand how a DPOA can protect you or your aging loved one, please click the link below to download our free guide on:
Done right, the DPOA is the most efficient (and generally less expensive) approach to Florida Medicaid planning, veteran’s benefits planning, and advance planning overall.
Power of Attorney (POA) vs. Durable Power of Attorney (DPOA) – What’s the Difference?
A “general” power of attorney (POA) is a document that gives a trusted person of your choice the ability to legally act on your behalf. The person who grants the DPOA is the principal and the person who represents the principal is the agent. From opening a bank account to paying bills, making medical and business decisions, or entering into contracts, a power of attorney can be written to handle many legal matters.
What a general POA cannot do is allow the agent to act on the principal’s behalf if the principal becomes incapacitated. A POA officially expires when the court determines the incapacity of the principal as certified by a physician.
The term “durable” means that the power of attorney remains in effect even if the principal becomes incapacitated. Every adult – young, old, single, married, of every status – should legally prepare for incapacity. This planning also protects families from the terrible stress and expenses that follow when no one has been appointed the legal powers to take care of their loved one’s affairs when incapacity strikes.
A DPOA may authorize the agent to exercise, among other things (1)
- planning for eligibility and applying for government and public assistance benefits (such as Medicaid) to reduce the principal’s out-of-pocket cost of long-term care and health care needs.
- expanded gift powers
- expanded trust and trust modification powers
- the power to provide for rights of survivorship
- the naming of beneficiaries effective upon the principal’s death
- waiver of benefits under a joint and survivor annuity or retirement plan
Do You Already Have a Durable Power of Attorney in Place?
If so, is your DPOA sufficiently drafted to authorize Florida Medicaid planning or any other transactions today? Chances are, it is not.
Over the years, I have reviewed thousands of DPOA documents for clients that that fall into the category of “insufficient” and had to be redone when clients request Medicaid planning services.
When durable powers of attorney are insufficient, seniors and their loved ones often find themselves in tragic and costly situations. Many seniors need access to Medicaid benefits as soon as they enter a skilled nursing home (SNF) or assisted living facility (ALF). But planning takes some time to properly and legally re-arrange assets so the senior is Medicaid eligible.
For clients who have the capacity to sign a new DPOA, we can usually get that done within a week, by sending one of our staff members out to the SNF or ALF to notarize the new DPOA.
The real problem arises when the person becomes incapacitated and can no longer sign a new DPOA. When that happens, the person must be deemed incapacitated by a court, and a guardianship proceeding must be opened. Guardianship is an expensive, time-consuming process where the court manages the affairs of the incapacitated ward. The costs and time delays associated with the guardianship may cost the family tens of thousands of dollars, even their life savings, payable to the ALF or SNF.
I don’t want this to happen to you. Here are some things to look for:
Was the DPOA improperly executed or deficient? DPOAs are not simple cookie-cutter documents. If certain powers are not specifically stated or are not properly signed or initialed, the agent cannot act on the principle’s behalf to initiate Medicaid planning transactions.
Was the DPOA written under outdated laws? Florida changed its Power of Attorney laws on October 1, 2011. Be sure a qualified attorney reviews any DPOA created before this date, as the new laws govern DPOAs in significant ways. Three main differences are:
- agents can no longer take any actions that are not clearly granted with specific language;
- “springing” powers of attorney are no longer recognized and generally are no longer drafted in Florida. Springing POAs created before October 1, 2011, may or may not be grandfathered in;
- Certain powers now require the signature or the initials of the principal.
Has the principal in a deficient DPOA become incapacitated? A most unfortunate situation is finding deficiencies in the durable power of attorney after the principal has lost the capacity to execute a new DPOA. If a senior becomes incapacitated before the new DPOA is established, guardianship may be required to run his or her affairs. In these cases, the family must have court authorization to proceed with Medicaid planning.
Did a non-attorney prepare the DPOA? Many who come to us have obtained their DPOA documents from a non-attorney. These documents can be fraught with errors and may not legally grant the powers your loved one requires. Once again, this comes from a lack of understanding of how specific and detailed the durable power of attorney must be for many estate planning transactions, including Medicaid planning. In some cases, Medicaid planning activities practiced by a non-lawyer can cross the line into the unlicensed practice of law, exposing you or a loved one to great harm.
These scenarios should never happen, and I always recommend a review of an existing durable power of attorney for our clients. I can help you today to prevent such disasters very affordably and quickly. Whether you live in Largo, Clearwater, St. Petersburg, Pinellas County, Tampa Bay or anywhere in Florida as a member of the Florida Bar I can work with you. You don’t even need to come to the office since we can work by phone and the Internet.
Durable Power of Attorney for Largo Estate Planning
Incapacity is a difficult issue but should be considered in all estate plans. Good planning not only involves preparing for the expected but for the unexpected as well, such as the possibility of becoming incapacitated.
For anyone who may one day need to receive benefits from the Medicaid program—to be able to afford to live in an assisted living facility or a skilled nursing home—Medicaid planning becomes a critical factor in one’s estate plan. You cannot begin Medicaid planning without a sufficient DPOA, which is why an integral part of our law firm’s process is to address incapacity carefully with each client.
Florida Seniors Benefit from Our Traveling Notary Service
A durable power of attorney must be signed by the principal and by two witnesses to the principal’s signature, and a notary must acknowledge the principal’s signature for the power of attorney to be properly executed and valid under Florida law.
For seniors who are ill or physically incapacitated, traveling to have powers of attorney signed in our office can be quite difficult and time-consuming. Many clients already reside in skilled nursing homes and assisted living facilities, or are hospitalized.
Our law firm’s mobile notary services are extremely helpful in these cases. Our notaries public will conform to your schedule and prioritize your convenience. You will have peace of mind that your confidential information is protected from potential mishandlings, and no errors or delays will occur.
Veteran’s Benefits Planning Is a Key Part of Florida Elder Law
Many veterans are getting older and having trouble receiving the veteran’s disability benefits they need. If you served during wartime and are either totally disabled or have reached age 65 with a limited income, you may be eligible for important Aid and Attendance benefits through the Veterans Pension program, along with other VA benefits you may not be aware of.
Veterans who need long-term care may also obtain financial help through Medicaid benefits. However, a veteran’s pension through Aid and Attendance can sometimes prohibit access to Medicaid benefits for several years.
To avoid this penalty, there are very effective legal strategies for obtaining non-service-connected pension benefits that I can help you with, so you can obtain VA Aid & Attendance, keep your eligibility for Medicaid benefits, and shelter and preserve your personal legacy.
Please get in touch with me to arrange a free consultation. As a veteran’s benefits lawyer, I am admitted to practice before the United States Court of Appeals for Veterans Claims, and a member of the National Organization of Veterans Advocates, Inc.
The Difference a Good Plan Can Make
As your Florida elder law attorney, I can help you establish or update your planning efforts with confidence. DPOAs and other planning documents should be amended as time passes because they are subject to changes to the law, your planning needs, and our legal experience.
We understand that decisions involving incapacitation can be emotionally challenging. From the onset of Alzheimer’s to a stroke or other catastrophic medical event, incapacity can happen without warning. With a proper DPOA in place, your eligibility for Medicaid benefits to pay for nursing home or assisted living care will be protected and ready to implement when the time comes.
Are You Prepared?
The legal issues of elder law, paying for nursing home care, Veterans benefits planning and more can seem overwhelming. Please contact me for a free telephone consultation and let’s find out how I may help.
- On weekdays call us directly at (727) 260-2581
- After 5 PM or weekends please call my cell phone at (813) 431-3193
- As a member of the Florida Bar based in Largo, FL I can help anyone in Largo, Clearwater, St. Petersburg, Pinellas County and the whole state of Florida
- No office visit is necessary. We can work with you virtually by phone or the internet.