Quiz: Can you revoke or countermand health care directives in PA?
April 30, 2011
Filed under: Estate Planning
— Andrew Sykes @ 9:40 am
Test your knowledge – you may be surprised!
Most health care directives in Pennsylvania contain (1) a health care power of attorney and (2) a living will. In the power of attorney, the “principal” authorizes an “agent” to make healthcare decisions when the principal cannot. In the living will, the principal gives instructions about what should be done in end-of-life circumstances such as an advanced incurable disease or persistent vegetative state.
Take this quiz to see if you know how those documents can be revoked or decisions countermanded in Pennsylvania.
- TRUE OR FALSE? A principal must be of sound mind to revoke a health care power of attorney.
- TRUE OR FALSE? A principal must be of sound mind to revoke a living will.
- TRUE OR FALSE? A health care power of attorney may only be revoked in writing.
- TRUE OR FALSE? A principal must be of sound mind to countermand decisions made by an agent under a health care power of attorney.
- TRUE. The citation of the statute is 20 Pa. C.S.A. § 5459(a).
- FALSE! “A living will may be revoked at any time and in any manner by the principal regardless of the mental or physical condition of the principal.” 20 Pa. C.S.A. § 5444(a). Usually, a principal must be competent to revoke a legal document, but not in the case of a living will in Pennsylvania. The legislature apparently wished to make sure that a living will could be revoked easily, and that health care providers or family members would not have to make any determination about whether the principal is competent. If the principal – competent or not – revokes the living will in any manner, it is no longer valid.
- FALSE. A health care power of attorney may be revoked in writing “or by personally informing the attending physician, health care provider or health care agent that the health care power of attorney is revoked.” 20 Pa. C.S.A. § 5459(a). If it is revoked in writing, the writing must be executed under the same requirements for establishing a health care power of attorney (such as being signed and dated by the principal and witnessed by two adults).
- IT DEPENDS. A competent principal may countermand any decision made by the health care agent, but an incompetent principal may only countermand a decision that would withhold or withdraw life-sustaining treatment. 20 Pa. C.S.A. 5457.
Filed under: Medicaid Planning
— Andrew Sykes @ 4:32 pm
A Pennsylvania Medicaid application asks this question about an applicant’s home:
“Are you planning to return to the property? __ Yes __ No.”
What happens if you say yes or no, and what happens then?
Here are some of the basic Pennsylvania rules governing a Medicaid applicant’s personal residence when applying for long term care supports and services.
Exempt property and transfers
If you say on the application that you plan to return to the property (even if that is highly unlikely), the property is exempt under the Medicaid rules, meaning that you will not have to sell it or do anything else with it to qualify for benefits. (Different rules apply if the applicant’s equity interest in the home exceeds $500,000, but that rarely happens in this region.)
A married applicant may transfer title to a spouse living at home. If the spouse at home lives longer than the applicant, the home is preserved.
A Medicaid applicant or recipient can also give the home away to a son or daughter who is under 21 years old, blind, or permanently and totally disabled (or put it into trust for that person). Such a transfer of title is called an “exempt” transfer because it is free of the ineligibility penalty that usually applies when someone applying for Medicaid gives away money or property.
An applicant can also make an exempt transfer of the home to “a trust for the sole benefit of an individual under 65 years of age who is disabled based on SSI criteria.” A special needs trust for an applicant’s grandchild would be an example.
An applicant can also make an exempt transfer of the home to a son or daughter who has lived in the home for at least two years before the applicant went into a nursing home, and who provided the care needed to keep the applicant at home.
Occasionally an applicant has a sibling who is also a part owner of the home. In that case, the applicant can make an exempt transfer of his or her interest to the sibling, provided the sibling has resided there for at least a year before the applicant went into the nursing home.
If you say you don’t plan to return, and you don’t make an exempt transfer of the home, the property is exempt for six months provided you make a good faith effort to sell it.
If your house is exempt because you say you plan to return, but you don’t transfer it to someone else, you have another problem: the Pennsylvania Estate Recovery Program.
The Medicaid program in Pennsylvania tracks what is spends for each person receiving benefits for long term care. The Estate Recovery Program makes a claim for those costs against the estates of deceased recipients.
So while the home was exempt during your lifetime, if you die owning it your name alone, your estate will have to satisfy the estate recovery claim. Such a claim is usually satisfied by selling the house and using the sale proceeds to pay the claim. If the deceased received benefits for a long time, the claim can consume the entire value of the home.
Therefore, in the case of an unmarried or widowed applicant, it’s frequently better to sell the home and make some better use of the proceeds before applying for Medicaid.
An elder law attorney can help you plan effective ways to avoid losing your home to estate recovery.