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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.

  1. TRUE OR FALSE? A principal must be of sound mind to revoke a health care power of attorney.
  2. TRUE OR FALSE? A principal must be of sound mind to revoke a living will.
  3. TRUE OR FALSE? A health care power of attorney may only be revoked in writing.
  4. TRUE OR FALSE? A principal must be of sound mind to countermand decisions made by an agent under a health care power of attorney.

Answers:

  1. TRUE. The citation of the statute is 20 Pa. C.S.A. § 5459(a).
  2. 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 If the principal – competent or not – revokes the living will in any manner, it is no longer valid.
  3. 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).
  4. 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.

Medicaid planning rules to protect the home in Pennsylvania

April 28, 2011

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.

Estate Recovery

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.


Adults of every age should have advance health care directives

April 21, 2011

Filed under: Estate Planning — Andrew Sykes @ 1:44 pm

A colleague told me about receiving the middle-of-the-night call no parent wants to get – her daughter at college had been rushed to the hospital and was unconscious.

Desperate to know what had happened, she called the emergency room but no one would give her any information. You see, her daughter was over 18 and had no health care power of attorney. Concern over privacy rules kept the hospital workers from giving the mother any information.

The daughter recovered but not before costing her mother many frantic hours. Mom felt sheepish. “As an elder law attorney, I should have thought to have her prepare an advance health care directive,” she said.

An advance health care directive typically has two parts. The first part is a health care power of attorney, which names an agent to make health care decisions for you when you can’t. A sentence or two giving your agent the right to receive your medical information helps your agent get the knowledge they need from doctors and nurses.  

The second part is typically a “living will,” which gives instructions on what to do if you’re in an end-stage medical condition (an illness, injury or condition in an advanced state that is likely to result in death despite medical treatment), a state of permanent unconsciousness, or similar situation.

Why would a girl of 18 need instructions about an end-stage medical condition? Consider this: several of the most highly publicized or landmark cases on this topic involved women who were in their twenties when they fell into a permanently unconscious condition: Karen Ann Quinlan, Nancy Cruzan, and Terry Schiavo. At that age, they each had the constitution to remain alive for years while their court cases dragged on.

In cases like those, a written living will would have clarified what the patient wanted.

With high school commencement season approaching, consider an off-beat but highly practical graduation gift: the graduate’s very own advance health care directive.


Ready to Start

Filed under: Estate Planning — Andrew Sykes @ 1:19 pm

I noticed an interesting comment in an opinion from the Fiduciary Reporter:

[A]n agent under a power of attorney does not have the power to execute a testamentary document on behalf of his or her principal. This concept is axiomatic – so much so that we can find and were cited to no Pennsylvania cases that spell it out, although numerous legal treatises, commentaries and interest blogs and commentaries affirm it.

Pendergrass Will (O.C. Div. Montgomery) 30 Fiduc. Rep. 2d Nov. 2010 (emphasis and italics added).

The judiciary is now citing to blogs!

Maybe it’s time to start one.


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