What is the Most Important Document in Elder Law? Power of Attorney.

If I were to ask you, and most attorneys, what the most important document is that a person can do, you may get a Will, Trust or similar document.

However, as an Elder Law attorney working with clients that are normally older than 65, I think that the most important document would be Powers of Attorney for finances and healthcare.

Why? My clients face a very significant chance of becoming incapacitated, even temporarily. When that happens (you can no longer handle your affairs or you need protection) and there is no legal document appointing someone to handle your affairs, our option is a guardianship. I have a separate blog post on the horrors of Guardianship if you wonder what I mean.

A Power of Attorney (POA) is a legal document that appoints someone to act on your behalf. This may seem a little scary but please understand that the agent you appoint has a fiduciary duty to you which means they can only take actions on your behalf that are in your best interest.

I recommend that your power of attorney be very exhaustive in the powers it gives so that we as your attorney working with your agent can do what is needed to protect your interests.

We as attorneys can use the comprehensive POA in many situations that really will protect the older person. One of the most common situations is where the senior is being scammed but they truly believe they are not being scammed. The senior continues to fall for the scam and continually gives up money.  If the POA allows the agent to close bank accounts and transfer the money, then we can use the agent and have them shut down the bank account of the senior protecting the estate. We also see similar situations where the non-family caregiver (and sometimes family members) are taking money from the account of the person they are caring for without permission. We again go in and shut down that bank account protecting the finances of the senior.

In order to qualify for Medicaid while protecting the estate, we give the money to the spouse if there is one or the heirs. This is allowed by Medicaid but if the person themselves cannot authorize the gifts, we have to do it under a Power of Attorney. However, unless that POA document specifically authorizes gifting by the agent, and gifting to the agent themselves if they are a beneficiary, then we cannot do the gifts. The Medicaid agency will inspect the POA document to see if the agent had the authority to do what they did. I’ve seen family lose very large amounts of money to long term care expense because the POA did not specifically allow gifting and we could not gift and utilize the rules that are in the Medicaid system. Those are really sad cases since otherwise, we would be able to save the money.

Please get your POAs done now while you can. It truly is the most important document a senior can do. Call Mid-America Law Practice, LLC at 314-818-8807 to see how we can help you with your Power of Attorney and Estate Planning documents.

The choice of a lawyer is an important decision and should not be based solely on advertisements.