Why every adult should have a POA

Having a power of attorney (or POA) is at least as important as having a will.

That’s the opinion I’ve come to after 24 years helping individual clients and families in private practice.

As people’s lifespans have increased, many spend more years than ever with a weakened ability to manage their own affairs. They increasingly rely on the help of a family member or friend to pay bills, manage finances, and deal with issues like taxes, insurance, and medical coverage.

For others, a temporary illness, accident, or absence from the state or country means someone else needs to manage personal affairs for a while, often on short notice.

A POA appoints another person (called your “agent”) to act on your behalf, usually with regard to financial, property, and legal matters. For the following reasons, a POA makes up a vital part of your estate planning arsenal.

Your entire estate could be distributed during your lifetime.

Here is the reason why I believe a POA is at least as important as your will.

What you now own, or major portions of it, could be spent or given away during your lifetime. For example, a person with a net worth of $400,000 could need skilled nursing care for several years, costing in excess of the net worth. Illness or misfortune could also befall another family member, requiring a major contribution from you.

Whatever the circumstances, you should appoint someone whose judgment you trust to make decisions for you, and carefully define your agent’s power. That way, you have more say in what happens to your assets if you can’t make your own decisions.

A POA allows your agent to protect your assets.

An elder law attorney can help you identify ways in which your assets could be at risk during your lifetime, especially in your senior years. Using that knowledge, you and your attorney can craft a POA that would give your agent the right mix of powers to protect those assets for you and other family members.

Suppose you are married and have a disabled son or daughter. If someday you need to apply for Medicaid benefits to pay for nursing home care (as many people do), your agent should have the ability to transfer assets to your spouse or disabled child. Those transfers would protect the assets while still allowing you to qualify for benefits. Without the right powers built into your POA, that opportunity could be lost.

A POA is preferable to guardianship.

If you have no POA, a court could appoint someone to make property or healthcare decisions for you. But guardianship comes with distinct disadvantages:

  • Delay. In most cases, obtaining a guardianship order from a court takes at least 30 to 60 days in Pennsylvania.
  • Cost. Legal costs for obtaining guardianship can easily cost several thousand dollars in legal fees, and much more if any part of the process is contested.
  • Red tape. A court-appointed guardian must take additional steps to comply with court rules that would be unnecessary for someone acting on your behalf under a POA. These include filing an inventory of all your assets; filing annual reports with the court; and asking court permission anytime the guardian needs to spend money out of principal. Many of these steps also require additional legal fees.
  • Lack of choice. When you appoint an agent with your POA, you choose the agent. In a guardianship proceeding, a judge will make the choice for you.

Even a POA carefully tailored by an experienced attorney costs less than a typical guardianship. You can choose your own agent. The agent you pick can act on your behalf immediately, or on short notice, and without unnecessary red tape.

Get professional help.

For these and many other reasons, every adult should have a POA. Given its importance in the management of your estate, I recommend using a well qualified attorney to help you plan and design a POA that will suit your individual needs and put you in good stead if the need arises.

Social Security claiming strategies to change within 6 months

When Congress passed the new budget deal October 30, it also included changes to the rules for claiming Social Security benefits. The new rules will end a popular claiming strategy that allowed claimants to receive more in benefits over their lifetimes.

The change will be fully implemented in the Spring of 2016.

If you are reaching full retirement age within the next six months, you still may have time to act under the old rules.

Read a summary of the changes in Liz Weston’s Money Talk column in the Los Angeles Times here. You can also read an article by Tim Grant of the Pittsburgh Post-Gazette here.

Report: seniors lose billions to scams each year

Financial exploitation of the elderly “is rising fast,” according to the cover article of Consumer Reports’ November 2015 issue.

The article cites one study that concluded that nearly 1 in 20 seniors in America report having been financially exploited in their later years.

The magazine profiles a number of scam victims and tells their stories. You can read the full article here.

A related article gives tips on preventing elder financial abuse: Build Your Own Safety Net. One of the tips is to visit an elder law attorney.

Dementia symptoms improved in pilot study

Many of the challenges our clients face as they age stem from loss of cognitive ability.

They need to rely on the agents they appoint in their powers of attorney and health care directives because they can’t process information and make decision the way they used to.

With all the advances in health and medical care that have extended life expectancies, treatments for cognitive impairments remain scant.

So it was exciting to hear in the past week about a pilot study in which patients taking the drug nilotinib experienced improvements in Parkinson’s disease symptoms, including improvement in cognitive ability. You can read, and listen to, NPR’s coverage of this development here.

The story concludes with a report that the drug will next be tested with Alzheimer’s patients.

Why use an elder law attorney to help you qualify for Medicaid?

asset-protect2Imagine that your husband recently suffered a stroke. After a stay in the hospital, he now resides in a nursing home. His doctor tells you your husband will not likely improve and will need to stay at the home indefinitely.

You worry how you will pay for care at $10,000 a month without impoverishing yourself.

A friend suggests you speak with an elder law attorney to come up with a plan. But the friendly, helpful woman in the nursing home’s business office dismisses that suggestion with a wave of her hand. “You don’t need to do that, we’ll help you prepare a Medicaid application – and we’ll do it for free!”

She seems so knowledgeable, telling you with certainty that the rules allow you to keep your house but require you to spend down half your other assets. “Well,” you think to yourself, “money is tight right now. Why pay someone to help me when the rules are clear and the nursing home will help me file an application for free?”

The answer is that you could easily wind up spending tens of thousands or even hundreds of thousands of dollars unnecessarily without a good plan to qualify for benefits.

Hopefully that last sentence got your attention. I’ve seen it happen countless times. A client finally comes to me for help a year or two too late, only to discover that they have been writing large checks for nursing care every month, when they could qualified for benefits long ago. Too late now – the money’s gone.

I don’t want you to end up like that. Read on to find out why it’s important to get good, objective advice, and how you can get that advice easily.

1. Qualifying for Medicaid is not simply a matter of filing an application.

Let me repeat that: Qualifying for Medicaid is not simply a matter of filing an application.

A nursing home resident becomes eligible to receive Medicaid benefits only after meeting certain financial requirements. You will not receive a dime in benefits until you meet those requirements.

The application merely allows benefits to begin once you have already met the requirements. A few people (those with very few assets) qualify immediately. Others have so much in assets that they will never qualify.

But most middle class clients we have seen must first spend down some assets before becoming qualified for benefits. Filing an application makes sense only when you have made the requisite spend-down.

Ideally, you should have a plan for how you will become qualified.

2. Medicaid rules allow numerous opportunities for savings and asset protection.

Medicaid law allows applicants to claim certain assets as “exempt,” meaning they will not count for spend-down purposes. The law also permits some “exempt transfers” of assets (for example, the transfer of a house to a caregiver child) that will help an applicant become eligible without triggering the usual penalty for giving away assets.

For married couples, the rules become more complex, allowing the non-applicant spouse (the “community spouse”) to keep some of the couple’s assets as a “community spouse resource allowance,” permitting the community spouse to receive a certain level of income as a monthly maintenance needs allowance, and allowing the community spouse to keep additional assets if income is needed for the community spouse to receive an adequate needs allowance.

In addition, case law in Pennsylvania authorizes the purchase of an annuity to give the community spouse additional income.

Let me stop here for a moment and return to the example I started with. Is the nursing home business manager (who offered to help you fill out an application) going to sit down with you and calculate your community spouse resource allowance and your monthly maintenance needs allowance to determine if you are entitled to keep additional assets when qualifying for benefits, or to discuss whether the purchase of an annuity would help you qualify sooner and provide income you will need in the future?

My guess is almost certainly not – she lacks the knowledge, training, and time to make those calculations and assessments.

3. Lawyers are trained to serve your best interests.

An experienced elder law attorney (especially one with a CELA designation) has the training to look for all the various ways you can get the best financial result.

And unlike someone who works for a nursing home, your lawyer has no conflict of interest. Keep in mind that the nursing home has an interest in making sure you qualify for benefits when you’ve spent down, but not necessarily in having you qualify any sooner. After all, the nursing home makes more profit when you’re spending down than when you’ve qualified for benefits.

A lawyer, on the other hand, is trained (and required by the rules of professional conduct) to act only in your best interest.

In the case of Medicaid planning, that means finding the spend-down scenario that will best serve your interests in saving money, protecting assets, and providing for the security of the community spouse.

A good elder law attorney will have spent significant time learning the nuances of Medicaid law and accumulating an assortment of techniques to maximize asset protection for clients. This knowledge and expertise can prove invaluable in crafting your plan.

4. We make it easy to find out if hiring an attorney is cost-effective.

At Sykes Elder Law, we make it simple to determine if using an attorney for Medicaid planning makes sense in your case.

When you first call, you will speak to someone who is trained to ask you the right questions to find out if it makes sense to come in for an appointment. We make appointments only for those clients who appear to be good candidates for benefitting from our expertise. If we believe you would not benefit, we tell you; if we believe you would benefit, we recommend an appointment with a certified elder law attorney.

It costs just $385 (at the time of this writing) to have an attorney meet with you, review your circumstances in detail, and make recommendations on how to proceed. Some clients receive great benefit (mentally and financially) from just that one meeting. In many cases, though, clients decide to hire us to help them design and implement a Medicaid qualification and asset protection plan because they have discovered how much more they will save and protect by having professional help.

Worth a phone call?

Let’s go back to the question from earlier in this post: Is it worth it to pay someone to help me, when I could prepare an application myself or get free help from someone at the nursing home?

It may or may not be cost-effective to hire an elder law attorney for Medicaid planning, depending on your situation. But it takes one phone call to start finding out.asset-protect2